This chapter shall be known and may be cited as the "Delaware Divorce and Annulment Act."

This chapter shall be liberally construed and applied to promote its underlying purposes, which are:

(1) To promote the amicable settlement of disputes that have arisen between parties to a marriage;

(2) To mitigate the potential harm to spouses and their children caused by the process of legal dissolution of marriage;

(3) To make the law of divorce more effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for divorce;

(4) To permit dissolution of a marriage where the marriage is irretrievably broken despite the objections of an unwilling spouse;

(5) To award alimony under this chapter to a dependent party but only during the continuance of such dependency;

(6) To award alimony in appropriate cases so as to encourage parties to become self-supporting;

59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 204, § 1; 62 Del. Laws, c. 168, § 1.;

(3) "Incompatibility" means marital rift or discord that has destroyed the marriage relation, without regard to the fault of either party.

(4) "Mental illness" means mental incapacity or infirmity so destructive of the marriage relation that petitioner cannot reasonably be expected to continue in that relation.

(5) "Misconduct" means conduct so destructive of the marriage relation that petitioner cannot reasonably be expected to continue in that relation; and "misconduct" includes, as examples, adultery, bigamy, conviction of a crime the sentence for which might be incarceration for 1 or more years, repeated physical or oral abuse directed against petitioner or children living in the home, desertion, homosexuality, lesbianism, wilful refusal to perform marriage obligations, contracting venereal disease, habitual intemperance, habitual use of illegal drugs or other incapacitating substances and/or other serious offenses destructive of the marriage relation.

(7) "Separation" means living separate and apart for 6 or more months immediately preceding the ruling upon the petition for a decree of divorce, except that no period of separation is required with respect to a marriage characterized under § 1505(b)(2) of this title; and separation may commence and/or continue while the parties reside under the same roof, provided, during such period, the parties occupy separate bedrooms and do not have sexual relations with each other, except as § 1505(e) of this title may apply.

(8) "Voluntary separation" means separation by mutual consent or acquiescence; but if respondent denies that the separation was voluntary then mutual consent or acquiescence must be established either by written agreement of the parties or by proof of institution by respondent of separate judicial proceedings premised upon respondent's consent to or acquiescence in the separation.

59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, §§ 1, 2; 60 Del. Laws, c. 331, § 1; 60 Del. Laws, c. 333, § 1; 61 Del. Laws, c. 365, §§ 1, 2.;

(a) The Family Court of the State has jurisdiction over all actions for divorce and annulment of marriage where either petitioner or respondent, at the time the action was commenced, actually resided in this State, or was stationed in this State as a member of the armed services of the United States, continuously for 6 or more months immediately preceding the commencement of the action.

(b) The procedure in divorce and annulment shall conform to the rules of the Court where the same do not contravene this title.

13 Del. C. 1953, § 1501; 58 Del. Laws, c. 349, § 1; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, § 3; 60 Del. Laws, c. 333, § 2.;

§ 1505. Divorce; marriage irretrievably broken and reconciliation improbable; defenses; efforts at reconciliation.

(a) The Court shall enter a decree of divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable.

(c) Previously existing defenses to divorce of condonation, connivance, recrimination, insanity and lapse of time are preserved but only with respect to marriages characterized under paragraph (b)(2) of this section.

(d) The only defense to a divorce action shall be the failure to establish either:

(4) A defense permitted under subsection (c) of this section because of the characterization of the marriage under paragraph (b)(2) of this section.

(e) Bona fide efforts to achieve reconciliation prior to divorce, even those that include, temporarily, sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom or had sexual relations with each other within the 30-day period immediately preceding the day the Court hears the petition for divorce.

24 Del. Laws, c. 221, § 3; 25 Del. Laws, c. 213, § 2; Code 1915, § 3006; 35 Del. Laws, c. 188, § 1; Code 1935, § 3499; 41 Del. Laws, c. 186, § 1; 43 Del. Laws, c. 206, § 1; 13 Del. C. 1953, § 1522; 49 Del. Laws, c. 57, § 1; 51 Del. Laws, c. 27; 56 Del. Laws, c. 296, §§ 1-3; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 333, §§ 3, 4; 61 Del. Laws, c. 365, §§ 3-5.;

(a) The Court shall enter a decree of annulment of a marriage entered into under any of the following circumstances:

(1) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs or other incapacitating substances;

(2) A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not, at the time the marriage was solemnized, know of the incapacity;

(3) A party was less than legal age and did not have the consent of his or her parents or guardian or judicial approval as provided by law;

(4) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage;

(5) One or both parties entered into the marriage under duress exercised by the other party, or a third party, whether or not such other party knew of such exercise of duress;

(7) The marriage is prohibited and void or voidable as provided in § 101 of this title.

(b) A decree of annulment may be sought by any of the following persons, and a petition therefor must be filed within the times specified below, but in no event may a decree of annulment be sought after the death of either party to the marriage, except as provided in this section:

(1) For the reasons set forth in either paragraph (a)(1), (4), (5) or (6) of this section, by either party to the marriage who was aggrieved by the condition or conditions, or by the legal representative of the party who lacked capacity to consent, no later than 90 days after petitioner obtained knowledge of the described condition.

(2) For the reason set forth in paragraph (a)(2) of this section, by either party no later than 1 year after petitioner obtained knowledge of the described condition.

(3) For the reason set forth in paragraph (a)(3) of this section, by the underaged party, his or her parent or guardian, no later than 1 year after the date the marriage was entered into.

(4) A decree of annulment for the reason set forth in paragraph (a)(7) of this section may be sought by either party, by the legal spouse in case of bigamous, polygamous or incestuous marriages, by the appropriate state official, or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor or administrator of the estate, or prior to 6 months after an order of distribution is made under Chapter 23 of Title 12.

(c) Children born of an annulled marriage are legitimate. Marriages annulled under this section shall be so declared as of the date of the marriage.

(d) The provisions of this chapter relating to the property rights of spouses are applicable to annulment.

(e) "Separation" as defined in § 1503(7) of this title is inapplicable to annulment proceedings; and a petition may be filed whenever a circumstance exists as defined by, and within the time limit specified in, this section.

24 Del. Laws, c. 213, § 1; 25 Del. Laws, c. 221, § 1; Code 1915, § 3004; Code 1935, § 3497; 13 Del. C. 1953, § 1551; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, § 6; 70 Del. Laws, c. 186, § 1.;

(1) The age, occupation and residence (including county in Delaware) of each party and length of residence in the State, showing compliance with the jurisdictional requirements of subsection (a) of § 1504 of this title;

(2) Address where it is most likely that mail will be received by respondent, or that no such address can be ascertained with reasonable diligence;

(3) Under proper circumstances, that it is unlikely that jurisdiction can be acquired over respondent other than by mailing or publication of notice as provided in § 1508 of this title;

(4) If respondent is a foreign national or has resided in a foreign country within 2 years prior to the filing of the petition, the address of a representative (preferably the nearest) of such foreign country in the United States;

(7) The names, ages and addresses of all living children of the marriage and whether the wife is pregnant;

(8) Whether there have been any prior matrimonial proceedings between the parties and, if so, the date, name and place of the court, and the disposition of the same;

(9) An allegation that the marriage is irretrievably broken and how it is characterized; or if the petition is for annulment, averment of the applicable circumstances specified in subsection (a) of § 1506 of this title and that the petition has been filed within the applicable time limit recited in subsection (b) of § 1506 of this title;

(c) The petition shall be filed either in the county wherein petitioner resides or the county wherein respondent resides.

(d) The petition shall be filed with the Clerk of the Court, along with such deposit to cover costs as the Court may fix, and a praecipe instructing the Clerk how service is to be made or jurisdiction otherwise sought or acquired over respondent.

(e) A petition for divorce may be filed at any time following the separation of the parties if the requirements of § 1504(a) of this title have been satisfied although no ruling shall be made to determine whether to grant a divorce until after the parties have been separated for 6 months; provided, however, that relief under § 1509 of this title shall be available to the parties during the interim.

(f) The relief prayed for under paragraph (b)(11) of this section may include, where appropriate under the facts and law, in addition to a prayer for a decree of divorce or annulment, prayers for other relief that may be available under this chapter, including, without limitation, prayers for interim relief (§ 1509 of this title), alimony (§ 1512 of this title), property disposition (§ 1513 of this title), resumption of prior name (§ 1514 of this title), and costs and attorneys' fees (§ 1515 of this title).

(g) In any case where there are living children of the marriage, the petitioner shall submit with the petition an affidavit signed by the petitioner showing that the petitioner has read or has been advised of the following children's rights, which shall be set forth in full in said affidavit:

(2) The right to be treated as an important human being, with unique feelings, ideas and desires.

(4) The right to know and appreciate what is good in each parent without one parent degrading the other.

(5) The right to express love, affection and respect for each parent without having to stifle that love because of fear of disapproval by the other parent.

(6) The right to know that the parents' decision to divorce was not the responsibility of the child.

(8) The right to honest answers to questions about the changing family relationships.

(9) The right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans.

(10) The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.

(h) In any case where there are living children of the marriage up to the age of 17, the Court shall order that the parties pay for and participate in a "Parenting Education Course" unless the Court, upon motion, determines that participation in the course is deemed not necessary. The "Parenting Education Course" shall be a course which is certified by the Department of Services for Children, Youth and Their Families to meet the goal of educating divorce litigants on the impact on children of the restructuring of families. The course, in order to be certified by the Department of Services for Children, Youth and Their Families, shall consist of at least four (4) hours of instruction and at a minimum provide instruction regarding the following items:

A litigant who has a demonstrable history of domestic violence shall be ordered to participate in a separate and more intensive course which shall include, at a minimum, the topics required in paragraphs (1) through (6) and education regarding domestic violence, its prevention and its effect upon children.

13 Del. C. 1953, § 1502; 58 Del. Laws, c. 349, § 2; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, §§ 4, 5; 61 Del. Laws, c. 365, § 7; 67 Del. Laws, c. 123, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 531, § 1; 76 Del. Laws, c. 96, § 1;

(a) After the filing of the petition, jurisdiction may be acquired over respondent in any of the following ways:

(1) By issuance of summons by the Clerk of the Family Court, and service thereof by the sheriff upon respondent, by delivering a copy of the summons, petition and any affidavit to respondent personally or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process;

(2) By appearance of respondent, either personally or by executing and filing an appearance document in a form approved by the Court, with or without issuance of summons;

(3) By appearance of counsel for respondent, with or without issuance of summons;

(b) If the petition avers that it is unlikely that jurisdiction can be acquired over respondent except by mailing and publication, or by publication only, whether respondent is a resident or a nonresident of this State, jurisdiction may be acquired over respondent by mailing and publication, or by publication only, under subsection (d) of this section.

(c) If an effort has been made unsuccessfully to obtain jurisdiction over respondent as provided in subsection (a) of this section, then jurisdiction may be acquired over respondent by mailing and publication, or by publication only, under subsection (d) of this section.

(d) When service is to be made upon respondent by mailing and publication, the Clerk of the Family Court shall:

(1) Send a copy of the summons, petition and any affidavit to respondent by registered or certified mail, return receipt requested, to the address that petitioner had averred it is most likely that mail will be received by respondent; and

(2) Cause a notice in the form prescribed by subsection (e) of this section to be published once in a newspaper of general circulation in the county where the action is pending.

If petitioner has averred that he or she knows of no address where it is most likely that mail will be received by respondent there shall be no mailing.

No further notice shall be required unless the Court, deeming the circumstances exceptional, requires further notice.

(Mary C. Doe), petitioner, has brought suit against you for divorce (or annulment) in the Family Court of the State of Delaware in and for (New Castle) County, in Civil Action No..... ., 20.. .. If you do not serve a response to the petition on petitioner's attorney (John C. Dodge, 400 Delaware Avenue, Wilmington, Delaware) within 20 days after the day of publication of this notice as required by statute, the action will be tried without further notice by the Family Court in (Wilmington).

(f) When the petition avers that respondent is a resident of this State, the summons shall be delivered to an officer for service in the county where it appears most likely that service can be effected on respondent.

(g) The expense of mailing and publication shall be taxed as part of the costs of the case.

(h) Original process, whether an original, alias or pluries writ, is returnable 20 days after the issuance of the writ, except that the Court by rule, or by order after application for cause shown, may provide that the writ be returnable sooner or later.

24 Del. Laws, c. 221, § 10; Code 1915, § 3013; Code 1935, § 3506; 43 Del. Laws, c. 205, § 1; 13 Del. C. 1953, § 1512; 58 Del. Laws, c. 349, § 10; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, §§ 6-9; 70 Del. Laws, c. 186, § 1.;

(a) Upon the filing of a petition for divorce or annulment, a preliminary injunction shall be issued against both parties to the action, enjoining them from:

(1) Transferring, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life, and requiring the parties to notify the other of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures after the preliminary injunction becomes effective;

(3) Removing any natural or adopted child of the parties then residing in Delaware from the jurisdiction of this Court without the prior written consent of the parties or the permission of the Court;

(4) Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties' minor children.

The preliminary injunction shall be effective against the petitioner upon the filing of the petition for divorce and upon the respondent upon service of a copy of the petition.

(b) Petitioner in the petition for divorce or annulment, or by motion filed simultaneously with the petition, or either party by motion filed after the filing of the petition, may move for 1 or more of the following interim orders:

(2) Restraining a party from transferring, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him or her to notify the moving party of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures made after the order is issued;

(3) Enjoining a party from molesting or disturbing the peace of the other party;

(4) Excluding a party from the family home or from the home of the other party even though such party has a legal or equitable interest in the same, upon a showing that physical or emotional harm might otherwise result;

(5) Requiring a party to make available to his or her spouse designated personal property and/or fixtures, even though titled in such party's name alone or jointly with someone else, upon such terms and conditions as the Court may impose;

(6) Requiring 1 party to pay such sum to the other party as deemed necessary to defray the other party's expenses in conducting the proceedings;

(c) A motion shall be accompanied by an affidavit setting forth the factual basis for the motion and any amounts of money requested. The Court may issue any of the above orders solely or collectively without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury would result to the moving party if an order were not issued until the time for responding has elapsed.

(d) Where appropriate under the facts and law, relief afforded a party under paragraphs (b)(1), (3), (4) and/or (5) of this section may be continued and/or included in the relief granted under § 1518(b) of this title.

Code 1915, § 3015; Code 1935, § 3508; 13 Del. C. 1953, § 1530; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, §§ 8, 9; 63 Del. Laws, c. 74, § 1; 70 Del. Laws, c. 186, § 1.;

Whenever there is exhibited to any duly authorized sheriff, constable or police officer a certified copy of an order issued by the Court in an action for divorce, or annulment, enjoining any person from threatening, beating, striking, assaulting any other person, or requiring the person to remove himself or herself from certain premises and to refrain from loitering, entering or remaining near the premises thereafter and the copy of the order shows under signature of the person so serving that a copy of the order has been properly served upon the person named in the order and the person named commits an apparent violation of its terms, it shall be the duty of the sheriff, constable or police officer to take him or her immediately before the Court issuing the order or if that Court is not in session then to the nearest jail until bail is fixed and provided or until the convening of its next session, to await further action for the violation.

(a) Respondent may file a verified response, move or otherwise plead in answer to the petition, and may counterclaim for divorce or annulment against petitioner, within 20 days after personal service, receipt of service by mail, appearance personally or by counsel, or the date of publication of notice.

(b) Respondent may seek an award of interim relief under § 1509 of this title, alimony where appropriate under § 1512 of this title, disposition of property, attorney's fees, resumption of former name or any other relief available to a petitioner.

(c) Petitioner may reply, move or otherwise plead in response to a counterclaim for divorce or annulment within 20 days after service of the counterclaim.

(d) For good cause shown, the Court may extend the time stipulated for responding to the petition or a counterclaim.

(e) In any case where there are living children of the marriage, the respondent shall submit with the response, or other responsive pleading, an affidavit signed by the respondent showing that the respondent has read or been advised of the children's rights set forth in § 1507(g) of this title, which rights shall be set forth in full in said affidavit.

13 Del. C. 1953, § 1504; 58 Del. Laws, c. 349, § 4; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, § 10; 67 Del. Laws, c. 123, § 2.;

(a) The Court may award interim alimony to a dependent party during the pendency of an action for divorce or annulment.

(b) A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that he or she:

(1) Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment;

(2) Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and

(3) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.

(c) The alimony order shall be in such amount and for such time as the Court deems just, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:

(1) The financial resources of the party seeking alimony, including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;

(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;

(7) The ability of the other party to meet his or her needs while paying alimony;

(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and

(10) Any other factor which the Court expressly finds is just and appropriate to consider.

(d) A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility; however, the factors contained in subsection (c) of this section shall apply and shall be considered by the Court.

(e) Any person awarded alimony has a continuing affirmative obligation to make good faith efforts to seek appropriate vocational training, if necessary, and employment unless the Court specifically finds, after a hearing, that it would be inequitable to require a person awarded alimony to do so (i) at any time, due to (A) a severe and incapacitating mental or physical illness or disability or (B) his or her age, or (ii) immediately, after consideration of the needs of a minor child or children living with him or her.

(f) A party who has in writing before, during or after the marriage waived or released his or her right to alimony shall have no remedy under this section.

(g) Unless the parties agree otherwise in writing, the obligation to pay future alimony is terminated upon the death of either party or the remarriage or cohabitation of the party receiving alimony. As used in this section, "cohabitation" means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation. A party receiving alimony shall promptly notify the other party of his or her remarriage or cohabitation.

13 Del. C. 1953, § 1537; 57 Del. Laws, c. 540, § 2; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, § 11; 62 Del. Laws, c. 168, § 2; 66 Del. Laws, c. 414, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1513. Disposition of marital property; imposition of lien; insurance policies.

(a) In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;

(5) The opportunity of each for future acquisitions of capital assets and income;

(6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;

(8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;

(9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;

(b) For purposes of this chapter only, "marital property" means all property acquired by either party subsequent to the marriage except:

(1) Property acquired by an individual spouse by bequest, devise or descent or by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer.

(c) All property acquired by either party subsequent to the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in paragraphs (b)(1) through (4) of this section. Property transferred by gift from 1 spouse to the other during the marriage is marital property.

(d) The Court may also impose a lien or charge upon the marital property assigned to a party as security for the payment of alimony or other allowance or award for the other party.

(e) The Court may also direct the continued maintenance and beneficiary designations of existing policies insuring the life of either party. The Court's power under this subsection shall extend only to policies originally purchased during the marriage and owned by or within the effective control of either party.

(f) The Court may order a party to execute and deliver any deed, document or other paper necessary to effectuate an order entered under this chapter, and if the party so ordered fails to do what he or she has been ordered to do, the Court, in addition to any penalty or sanction it may decide to impose upon that party for such disobedience, may direct the Clerk of the Court to do what the party was ordered to do, and such performance by the Clerk shall be as effective as the performance of the party would have been.

24 Del. Laws, c. 221, §§ 15, 16; 25 Del. Laws, c. 213, § 4; Code 1915, §§ 3018, 3019; Code 1935, §§ 3511, 3512; 13 Del. C. 1953, § 1531; 57 Del. Laws, c. 540, § 1; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, §§ 12, 13; 66 Del. Laws, c. 246, §§ 1-4; 69 Del. Laws, c. 55, §§ 1-3; 70 Del. Laws, c. 186, § 1.;

The Court, upon the request of a party by pleading or motion, may order that such party resume a maiden or former name.

24 Del. Laws, c. 221, § 25; Code 1915, § 3028; Code 1935, § 3521; 13 Del. C. 1953, § 1536; 58 Del. Laws, c. 349, § 12; 59 Del. Laws, c. 350, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 254, § 2.;

The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorneys' fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.

Code 1915, § 3015; Code 1935, § 3508; 13 Del. C. 1953, § 1530; 59 Del. Laws, c. 350, § 1; 70 Del. Laws, c. 186, § 1.;

(a) All hearings and trials shall be private, but for reasons appearing sufficient to the Court any hearing or trial may be opened to any person who has a direct and legitimate interest in the particular case, or a legitimate educational or research interest in the work of the Court.

(b) A judge or commissioner, sitting without a jury, shall conduct all hearings and trials where there is a contest, and in those proceedings that are uncontested.

(c) Whenever it seems appropriate, in the interest of justice, the Court may designate a disinterested attorney to defend, or otherwise participate in, a proceeding before the Court, and a fee for such attorney shall be taxed as part of the costs.

(d) No record or evidence in any case shall be impounded or access thereto refused.

13 Del. C. 1953, §§ 1505-1507; 58 Del. Laws, c. 349, §§ 5-7; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 333, § 5; 61 Del. Laws, c. 365, § 14; 76 Del. Laws, c. 59, § 1.;

§ 1517. Contested and noncontested petitions; opportunity for counseling; review of record; disposition of prayers for relief.

(a) Whenever the petition for divorce or annulment is not contested by respondent, the allegations thereof are presumed to be accurate and true, and the Court shall rule upon the petition either after a hearing at which only petitioner need testify, or without a hearing after the submission of a request for finalization and affidavit which reaffirms the petition and verifies service of process and military status of the respondent. If petitioner's testimony or the affidavit fails to support the petition in any essential respect, the Court may deny the petition or require corroborating testimony or other evidence before ruling thereon.

(2) Continue the matter with the consent of both parties for further hearing not more than 60 days later so that the parties may seek counseling, either with a qualified private counselor or an accredited counseling agency, public or private. No party who objects shall be forced to submit to counseling, and all counseling or interviews shall be confidential and privileged and only the fact that further efforts at reconciliation are impractical or not in the interest of the parties shall be reported to the Court. At the adjourned hearing the Court shall finally determine whether the marriage is irretrievably broken.

(1) The averments of the petition satisfy § 1504(a), § 1505 or § 1506, and § 1507 of this title;

(3) In uncontested cases, whether the time for respondent to file a responsive pleading has expired;

(4) The parties to a divorce proceeding have continued to be separated since the commencement of this action, except as § 1505(e) of this title may apply;

(6) The affidavit of nonmilitary service, wherever required by federal statute, has been filed.

(d) Where either party has requested property disposition, alimony or other relief provided for in this title, and a decree of divorce or annulment shall be entered, or if such a decree is refused and, nevertheless, the Court deems it appropriate to enter an order concerning some or all of the relief requested, the Court shall finally determine such requests for relief.

59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, §§ 15-17; 74 Del. Laws, c. 254, § 1.;

§ 1518. Decree in divorce or annulment proceedings; costs; notice of entry; effect on mentally incompetent spouse; effect on subsequent petitions; temporary alimony.

(a) A decree granting or denying a petition for divorce or annulment is final when entered, subject to the right of appeal. An appeal that does not challenge the decree of divorce or annulment, but challenges only rulings with respect to relief awarded under other sections of this chapter, or other matters incidental or collateral to such decree, shall not delay the finality of the decree of divorce or annulment, and the parties may remarry while the appeal is pending.

(b) Whenever the Court enters a decree granting a petition for divorce or annulment, a certified copy of such decree shall be made available to the parties within 30 days after such ruling; but following a contested proceeding, such a copy of the decree shall only be made available to the parties 30 days after such ruling, and after the furnishing of such proof as the Court may require that no appeal challenging the decree of divorce or annulment is pending.

(c) In the decree granting or denying a petition for divorce or annulment, or by separate order or orders preceding or following such decree, the Court shall dispose of all other prayers for relief, where appropriate under the facts and law; but an application for such relief and a hearing thereon must be presented in the petition or response, or by motion after notice to the other party prior to the entry or denial of such decree.

(d) Court costs, including any fee for the services of an attorney allowed by the Court, shall be taxed by the Court at or about the time of the granting or denial of the decree of divorce or annulment, at the time of disposition of other prayers for relief in accordance with subsection (c) of this section, following the disposition of an appeal, or at such other time or times as the Court may deem appropriate.

(e) The Clerk of the Family Court shall give notice of the entry of a decree of divorce or annulment:

(1) If the marriage is registered in this State, to the clerk of the peace of the county where the marriage is registered and such clerk shall enter the fact of divorce or annulment in his or her records; or

(2) If the marriage is registered in another jurisdiction, to the appropriate official of that jurisdiction, with the request that he or she enter the fact of divorce or annulment in the appropriate record.

(f) No decree that may enter shall relieve a spouse from any obligation imposed by law as a result of the marriage for the support or maintenance of a spouse adjudicated to be mentally incompetent prior to the decree, unless such spouse has sufficient property or means of support.

(g) A decree denying a petition for divorce or annulment shall not foreclose a subsequent petition for such relief if the subsequent petition involves factual or legal premises not directly or by necessary implication decided by the decree on the former petition.

24 Del. Laws, c. 221, §§ 22, 23; 25 Del. Laws, c. 213, § 6; Code 1915, §§ 3025, 3026; Code 1935, §§ 3518-3519A; 46 Del. Laws, c. 230, §§ 1, 2; 47 Del. Laws, c. 191, § 1; 13 Del. C. 1953, §§ 1533, 1534, 1553; 58 Del. Laws, c. 349, § 11; 59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, § 10; 61 Del. Laws, c. 204, § 2; 61 Del. Laws, c. 365, §§ 18-21; 62 Del. Laws, c. 168, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 216, § 54; 76 Del. Laws, c. 107, § 1.;

§ 1519. Modification or termination of decree or order; termination of alimony; enforcement of alimony order.

(a) A decree or separate order entered under § 1518 of this title may be modified or terminated only as follows:

(1) Support for a child, only as provided in Chapter 5 of this title, or otherwise;

(2) Custody and/or visitation of a child, only as provided in Chapter 7 of this title, or otherwise;

(3) Property disposition, only upon a showing of circumstances that would justify the opening or vacation of a judgment under the Rules of the Superior Court of this State;

(4) Alimony or any other relief awarded, only upon a showing of real and substantial change of circumstances.

(b) Unless otherwise agreed by the parties in writing and expressly provided in the decree, the obligation to pay future alimony is terminated upon the death of either party or the remarriage of the party receiving alimony.

(c) Any alimony order entered pursuant to § 1512 of this title shall be enforced in this State exclusively by the Family Court in the county wherein the respondent resides or is found, or in the county where petitioner resides if respondent does not reside and cannot be found in this State, regardless of whether such petitioner was the petitioner or the respondent in the divorce action, and such Family Court, on proper showing of either of such petitioner or such respondent or on its own motion, may modify or terminate support obligations formerly decreed by the Superior Court.

59 Del. Laws, c. 350, § 1; 60 Del. Laws, c. 297, §§ 11, 12; 61 Del. Laws, c. 365, § 22.;

If a party fails to comply with a provision of a decree or temporary order, the obligation of the other party to make alimony payments is not suspended; but he or she may move the Court to grant an appropriate order.

Full faith and credit shall be given in all the courts of this State to a decree of divorce or annulment of marriage by a court of competent jurisdiction in another state, territory or possession of the United States. Nothing herein contained shall be construed to limit the power of any court of this State to give such effect to a decree of divorce or annulment by a court of a foreign country as may be justified by the rules of international comity.

24 Del. Laws, c. 221, § 28; Code 1915, § 3032; Code 1935, § 3525; 45 Del. Laws, c. 225, § 1; 13 Del. C. 1953, § 1511; 59 Del. Laws, c. 350, § 1.;

(a) All parties to any of the proceedings brought pursuant to this chapter shall possess all the procedural rights which those parties would have heretofore possessed in any of the proceedings brought pursuant to this chapter in the Superior Court of this State including but not limited to the following:

(3) Right to appeal to the Supreme Court of this State on the record from interlocutory or final orders for judgment; such appeal shall be in the form and manner provided by the rules of the Supreme Court.

(b) A complete record shall be made of all proceedings in which testimony is taken under this section by a court stenographer, tape recorder or other device which method shall be at the discretion of the Court.

No appeal from an interim or final decree, judgment or order entered pursuant to this chapter shall be received or entertained unless the praecipe, notice of appeal or other document or documents required for the appeal is or are duly filed with the proper appellate court within 30 days after the date of the same.

NOTICE: The Delaware Code appearing on this site was prepared by the Division of Research of Legislative Council of the General Assembly with the assistance of the Government Information Center, under the supervision of the Delaware Code Revisors and the editorial staff of LexisNexis, includes all acts effective as of October 6, 2009, up to and including 77 Del. Laws, c. 214.

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter I. General Provisions

§ 1901. Short title.

This chapter may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."

73 Del. Laws, c. 426, § 1;

§ 1902. Definitions.

As used in this chapter:

(1) "Abandoned" means left without provision for reasonable and necessary care or supervision.

(2) "Child" means an individual who has not attained 18 years of age.

(3) "Child custody determination" means a judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) "Child custody proceeding" means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under subchapter III of this chapter.

(5) "Commencement" means the filing of the first pleading in a proceeding.

(6) "Court" means the Family Court of the State.

(7) "Home State" means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

(8) "Initial determination" means the first child custody determination concerning a particular child.

(9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.

(10) "Issuing State" means the state in which a child custody determination is made.

(11) "Modification" means a child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

(12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

(13) "Person acting as a parent" means a person, other than a parent, who:

a. Has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and

b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this State.

(14) "Physical custody" means the physical care and supervision of a child.

(15) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United State Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(16) "Tribe" means an Indian tribe or band, or Alaska Native village, which is recognized by federal law or formally acknowledged by a state.

(17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

73 Del. Laws, c. 426, § 1;

§ 1903. Proceedings governed by other law.

This chapter does not govern a termination of parental rights proceeding related to an adoption proceeding brought by a licensed Delaware agency or an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

73 Del. Laws, c. 426, § 1; 74 Del. Laws, c. 94, § 1;

§ 1904. Application to Indian tribes.

(a) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

(b) A court of the state shall treat a tribe as if it were a state of the United States for the purpose of applying subchapters I and II of this chapter.

(c) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under subchapter III of this chapter.

73 Del. Laws, c. 426, § 1;

§ 1905. International application.

(a) A court of this State shall treat a foreign country as if it were a state of the United States for the purpose of applying subchapters I and II of this chapter.

(b) Except as otherwise provided in subsection (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under subchapter III of this chapter.

(c) A court of this State need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

73 Del. Laws, c. 426, § 1;

§ 1906. Effect of child custody determination.

A child custody determination made by a court of this State that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this State or notified in accordance with § 1908 of this chapter or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

73 Del. Laws, c. 426, § 1;

§ 1907. Priority.

If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.

73 Del. Laws, c. 426, § 1;

§ 1908. Notice to persons outside State.

(a) Notice required for the exercise of jurisdiction when a person is outside this State may be given in a manner prescribed by the law of this State for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

(b) Proof of service may be made in the manner prescribed by the law of this State or by the law of the state in which the service is made.

(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

73 Del. Laws, c. 426, § 1;

§ 1909. Appearance and limited immunity.

(a) A party to a child custody proceeding, including a modification proceeding or a petitioner or respondent in a proceeding to enforce or register a child custody determination is not subject to personal jurisdiction in this State for another proceeding or purpose solely by reason of having participated or of having been physically present for the purpose of participating in the proceeding.

(b) A person who is subject to personal jurisdiction in this State on a basis other than physical presence is not immune from service of process in this State. A party present in this State who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

(c) The immunity granted by subsection (a) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this State.

73 Del. Laws, c. 426, § 1;

§ 1910. Communication between courts.

(a) A court of this State may communicate with a court in another state concerning a proceeding arising under this chapter.

(b) The court may allow the parties to participate in the communication. If the parties do not participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

(c) Communication between courts on schedules, calendars, court records and similar matters may occur without informing the parties. A record need not be made of the communication.

(d) Except as otherwise provided in subsection (c) of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.

(e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

73 Del. Laws, c. 426, § 1;

§ 1911. Taking testimony in another state.

(a) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this State for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

(b) A court of this State may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means or other electronic means before a designated court or at another location in that state. A court of this State shall cooperate with courts of other States in designating an appropriate location for the deposition or testimony.

(c) Documentary evidence transmitted from another state to a court of this State by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

73 Del. Laws, c. 426, § 1;

§ 1912. Cooperation between courts; preservation of records.

(a) A court of this State may request the appropriate court of another state to:

(1) Hold an evidentiary hearing;

(2) Order a person to produce or give evidence pursuant to procedures of that state;

(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;

(4) Forward to the court of this State a certified copy of the transcript of the record of the hearing, the evidence otherwise presented and any evaluation prepared in compliance with the request; and

(5) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

(b) Upon request of a court of another state, a court of this State may hold a hearing or enter an order described in subsection (a) of this section.

(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties according to the law of this State.

(d) A court of this State shall preserve the pleadings, findings, orders and decrees with respect to a child custody proceeding until the child attains 18 years of age. A record of any hearing and evidence admitted at any hearing shall be retained for 5 years. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of the records.

73 Del. Laws, c. 426, § 1;

§§ 1913-1919. [Reserved.]

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter II. Jurisdiction

§ 1920. Initial child custody jurisdiction.

(a) Except as otherwise provided in § 1923 of this title, a court of this State has jurisdiction to make an initial child custody determination only if:

(1) This State is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 1926 or § 1927 of this title; and

a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 1926 or § 1927 of this title; or

(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3) of this subsection.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

(c) Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.

73 Del. Laws, c. 426, § 1;

§ 1921. Exclusive, continuing jurisdiction.

(a) Except as otherwise provided in § 1923 of this title, a court of this State which has made a child custody determination consistent with § 1920 or § 1922 of this title has exclusive, continuing jurisdiction over the determination until:

(1) A court of this State determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(2) A court of this State or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this State.

(b) A court of this State which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under § 1920 of this title.

73 Del. Laws, c. 426, § 1;

§ 1922. Jurisdiction to modify determination.

Except as otherwise provided in § 1923 of this title, a court of this State may not modify a child custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under § 1920(a)(1) or (2) of this title and:

(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under § 1921 of this title or that a court of this State would be a more convenient forum under § 1926 of this title; or

(2) A court of this State or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.

73 Del. Laws, c. 426, § 1;

§ 1923. Temporary emergency jurisdiction.

(a) A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under §§ 1920-1922 of this title. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title, a child custody determination made under this section becomes a final determination if it so provides and this State becomes the home state of the child.

(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title, any order issued by a court of this State under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under §§ 1920-1922 of this title. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) A court of this State which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under §§ 1920-1922 of this title, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to §§ 1920-1922 of this title, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

73 Del. Laws, c. 426, § 1;

§ 1924. Notice; opportunity to be heard; joinder.

(a) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of § 1908 of this title must be given to all persons entitled to notice under the law of this State as in child custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

(b) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.

(c) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this State as in child custody proceedings between residents of this State.

73 Del. Laws, c. 426, § 1;

§ 1925. Simultaneous proceedings.

(a) Except as otherwise provided in § 1923 of this title, a court of this State may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this State is a more convenient forum under § 1926 of this title.

(b) Except as otherwise provided in § 1923 of this title, a court of this State, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to § 1928 of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this State shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.

(c) In a proceeding to modify a child custody determination, a court of this State shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:

(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying or dismissing the proceeding for enforcement;

(2) Enjoin the parties from continuing with the proceeding for enforcement; or

(3) Proceed with the modification under conditions it considers appropriate.

73 Del. Laws, c. 426, § 1;

§ 1926. Inconvenient forum.

(a) A court of this State which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this State;

(3) The distance between the court in this State and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(d) A court of this State may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

73 Del. Laws, c. 426, § 1;

§ 1927. Jurisdiction declined by reason of conduct.

(a) Except as otherwise provided in § 1923 of this title, if a court of this State has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(2) A court of the state otherwise having jurisdiction under §§ 1920-1922 of this title determines that this State is a more appropriate forum under § 1926 of this title; or

(3) No court of any other state would have jurisdiction under the criteria specified in §§ 1920-1922 of this title.

(b) If a court of this State declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under §§ 1920-1922 of this title.

(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against this State unless authorized by law other than this chapter.

73 Del. Laws, c. 426, § 1;

§ 1928. Information to be submitted to court.

(a) Subject to the rules of the court, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:

(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number and the date of the child custody determination, if any;

(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number and the nature of the proceeding; and

(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of or visitation with the child and, if so, the names and addresses of those persons.

(b) If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

(c) If the declaration as to any of the items described in paragraphs (a)(1)-(3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.

(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

(e) If a party alleges in an affidavit or a pleading under oath that the health, safety or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety or liberty of the party or child and determines that the disclosure is in the interest of justice.

73 Del. Laws, c. 426, § 1;

§ 1929. Appearance of parties and child.

(a) In a child custody proceeding in this State, the court may order a party to the proceeding who is in this State to appear before the court in person with or without the child. The court may order any person who is in this State and who has physical custody or control of the child to appear in person with the child.

(b) If a party to a child custody proceeding whose presence is desired by the court is outside this State, the court may order that a notice given pursuant to § 1908 of this title include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

(d) If a party to a child custody proceeding who is outside this State is directed to appear under subsection (b) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

73 Del. Laws, c. 426, § 1;

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter III. Enforcement

§ 1930. Definitions.

In this subchapter:

(1) "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

(2) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

73 Del. Laws, c. 426, § 1;

§ 1931. Enforcement under Hague Convention.

Under this subchapter a court of this State may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

73 Del. Laws, c. 426, § 1;

§ 1932. Duty to enforce.

(a) A court of this State shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.

(b) A court of this State may utilize any remedy available under other law of this State to enforce a child custody determination made by a court of another state. The remedies provided in this subchapter are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

73 Del. Laws, c. 426, § 1;

§ 1933. Temporary visitation.

(a) A court of this State which does not have jurisdiction to modify a child custody determination, may issue a temporary order enforcing:

(1) A visitation schedule made by a court of another state; or

(2) The visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.

(b) If a court of this State makes an order under paragraph (a)(2) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in subchapter II of this chapter. The order remains in effect until an order is obtained from the other court or the period expires.

73 Del. Laws, c. 426, § 1;

§ 1934. Registration of child custody determination.

(a) A child custody determination issued by a court of another state may be registered in this State, with or without a simultaneous request for enforcement, by sending to the court:

(1) A letter or other document requesting registration;

(2) Two copies, including 1 certified copy, of the determination sought to be registered and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and

(3) Except as otherwise provided in § 1928 of this title, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

(b) On receipt of the documents required by subsection (a) of this section, the registering court shall:

(1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and

(2) Serve notice upon the persons named pursuant to paragraph (a)(3) of this section and provide them with an opportunity to contest the registration in accordance with this section.

(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this State;

(2) A hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and

(3) Failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(1) The issuing court did not have jurisdiction under subchapter II of this chapter;

(2) The child custody determination sought to be registered has been vacated, stayed or modified by a court having jurisdiction to do so under subchapter II of this chapter; or

(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of § 1908 of this title, in the proceedings before the court that issued the order for which registration is sought.

(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

73 Del. Laws, c. 426, § 1;

§ 1935. Enforcement of registered determination.

(a) A court of this State may grant any relief normally available under the law of this State to enforce a registered child custody determination made by a court of another state.

(b) A court of this State shall recognize and enforce, but may not modify, except in accordance with subchapter II of this chapter, a registered child custody determination of a court of another state.

73 Del. Laws, c. 426, § 1;

§ 1936. Simultaneous proceedings.

If a proceeding for enforcement under this subchapter is commenced in a court of this State and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under subchapter II of this chapter, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

73 Del. Laws, c. 426, § 1;

§ 1937. Expedited enforcement of child custody determination.

(a) A petition under this subchapter must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.

(b) A petition for enforcement of a child custody determination must state:

(1) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;

(2) Whether the determination for which enforcement is sought has been vacated, stayed or modified by a court whose decision must be enforced under this chapter and, if so, identify the court, the case number and the nature of the proceeding;

(3) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number and the nature of the proceeding;

(4) The present physical address of the child and the respondent, if known;

(5) Whether relief in addition to the immediate physical custody of the child and attorneys' fees is sought and, if so, the relief sought; and

(6) If the child custody determination has been registered and confirmed under § 1934 of this title, the date and place of registration.

(c) If the petition seeks emergency relief or expedited scheduling, the provisions of Rule 65.2 of the Family Court Civil Procedure Rules shall apply.

73 Del. Laws, c. 426, § 1;

§ 1938. Service of petition and order.

Except as otherwise provided in § 1940 of this title, the petition and order must be served, by any method authorized by law upon respondent and any person who has physical custody of the child.

73 Del. Laws, c. 426, § 1;

§ 1939. Hearing and order.

(a) Unless the court issues a temporary emergency order pursuant to § 1923 of this title, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(1) The child custody determination has not been registered and confirmed under § 1934 of this title and that:

a. The issuing court did not have jurisdiction under subchapter II of this chapter;

b. The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court of a state having jurisdiction to do so under subchapter II of this chapter; or

c. The respondent was entitled to notice, but notice was not given in accordance with the standards of § 1908 of this title, in the proceedings before the court that issued the order for which enforcement is sought; or

(2) The child custody determination for which enforcement is sought was registered and confirmed under § 1934 of this title but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under subchapter II of this chapter.

(b) The court shall award the fees, costs and expenses authorized under § 1941 of this title and may grant additional relief and set a further hearing to determine whether additional relief is appropriate.

(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this subchapter.

73 Del. Laws, c. 426, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1940. Warrant to take physical custody of child.

(a) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is imminently likely to suffer serious physical harm or be removed from this State.

(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this State, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by § 1937(b) of this title.

(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;

(2) Direct law-enforcement officers to take physical custody of the child immediately; and

(3) Provide for the placement of the child pending final relief.

(d) The respondent must be served with the petition, warrant and order immediately after the child is taken into physical custody.

(e) A warrant to take physical custody of a child is enforceable throughout this State.

(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.

73 Del. Laws, c. 426, § 1;

§ 1941. Costs, fees and expenses.

(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorneys' fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

(b) The court may not assess fees, costs or expenses against a state unless authorized by law other than this chapter.

73 Del. Laws, c. 426, § 1;

§ 1942. Recognition and enforcement.

A court of this State shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child custody determination by a court of another state unless the order has been vacated, stayed or modified by a court having jurisdiction to do so under subchapter II of this chapter.

73 Del. Laws, c. 426, § 1;

§ 1943. Appeals.

An appeal may be taken from a final order in a proceeding under this subchapter in accordance with expedited appellate procedures in other civil cases. Unless the court enters a temporary emergency order under § 1923 of this title, the enforcing court may not stay an order enforcing a child custody determination pending appeal.

73 Del. Laws, c. 426, § 1;

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Delaware Divorce Laws

Delaware Divorce Laws

Title 13: Domestic Relations; CHAPTER 15. DIVORCE AND ANNULMENT

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter I. General Provisions

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter II. Jurisdiction

TITLE 13

Domestic Relations

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Subchapter III. Enforcement

(Make sure to consult a lawyer or check your local laws for any changes.)

Delaware Divorce Laws