CHAPTER 367
FORMERLY
HOUSE BILL NO. 315
AS AMENDED BY HOUSE AMENDMENT NO. 1 AND
SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 10, DELAWARE CODE, TO PROVIDE FOR THE UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):
Section 1. Amend Title 10, Delaware Code, Chapter 9, Subchapter III by redesignating Parts E and F as Parts F and G, respectively, and by adding a new Part E to read as follows:
"Part E. Interstate Enforcement of Domestic Violence Protection Orders
Section 1049. TITLE.
This Part may be cited as the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act.
Section 1049A. DEFINITIONS.
(1) 'Foreign protection order' means a protection order issued by a tribunal of another State.
(2) 'Issuing State' means the State whose tribunal issues a protection order.
(3) 'Mutual foreign protection order' means a foreign protection order that includes provisions in favor of both protected individuals seeking enforcement of the order and the respondents.
(4) 'Protected individual' means an individual protected by a protection order.
(5) Protection order' means an injunction or other order, issued by a tribunal under the domestic-violence or family-violence laws of the issuing State, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual. The term includes an injunction or other order issued under the anti-stalking laws of the issuing state.
(6) 'Respondent' means the individual against whom enforcement of a protection order is sought.
(7) 'State' means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
(8) 'Tribunal' means a court, agency, or other entity authorized by law to issue or modify a protection order.
(9) 'Court' means The Family Court of the State of Delaware.
Section 1049B. JUDICIAL ENFORCEMENT OF ORDER.
(a) A person authorized by the law of this State to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in the Court. The Court shall enforce the terms of the order, including terms that provide relief that the Court would lack power to provide but for this section. The Court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the Court shall follow the procedures of this State for the enforcement of protection orders.
(b) The Court may not enforce a foreign protection order issued by the tribunal of a State that does not recognize the standing of a protected individual to seek enforcement of the order.
(c) The Court shall enforce the provisions of a valid foreign protection order which govern custody and visitation, if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing State.
(d) A foreign protection order is valid if it:
(1) identifies the protected individual and the respondent;
(2) is currently in effect;
(3) was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing State; and
(4) was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and had an opportunity to be heard within a reasonable time after the order was issued, consistent with the rights of the respondent to due process.
(e) A foreign protection order valid on its face is prima facie evidence of its validity.
(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(g) The Court may enforce provisions of a mutual foreign protection order which favor a respondent only if:
(1) the respondent filed a written pleading seeking a protection order from the tribunal of the issuing State; and
(2) the tribunal of the issuing State made specific findings in favor of the respondent.
Section 1049C. NON-JUDICIAL ENFORCEMENT OF ORDER.
Pursuant to the provisions of § 1046 of this Chapter, a law enforcement officer of this State, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a Court of this State. Registration or filing of an order in this State is not required for the enforcement of a valid foreign protection order.
Section 1049D. REGISTRATION OF ORDER.
(a) Any individual may register a foreign protection order in this State. To register a foreign protection order an individual shall present a certified copy of the order to the Court.
(b) Upon receipt of a foreign protection order, the Court shall register the order in accordance with this section. After the order is registered, the Court shall furnish to the individual registering the order a certified copy of the registered order.
(c) The Court shall register an order upon presentation of a copy of a protection order which has been certified by the issuing State. A registered foreign protection order that is inaccurate or is not currently in effect must be corrected or removed from the registry in accordance with the law of this State.
(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.
(e) A foreign protection order registered under this Part may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
(f) A fee may not be charged for the registration of a foreign protection order.
Section 1049E. IMMUNITY.
This State or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this Part.
Section 1049F. OTHER REMEDIES.
A protected individual who pursues remedies under this Part is not precluded from pursuing other legal or equitable remedies against the respondent.".
Section 2. Amend § 1046 of Chapter 9, Title 10, Delaware Code by redesignating Subsections (d) and (e) as Subsections (h) and (i), by striking Subsection (c) in its entirety and by inserting new Subsections (c), (d), (e), (f) and (g) to read as follows:
"(c) A law-enforcement officer shall arrest, with or without a warrant, any individual whom the officer has probable cause to believe has violated a protective order issued under this Part or a valid foreign protection order under Part E, and who has notice or knowledge of the protective order. Presentation of a protective order that identifies both the protected person and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a protective order exists. The protective order may be either in tangible form or stored in DELJIS or other electronic medium if it is retrievable in perceivable form. Probable cause for arrest may be established by a good faith reliance on information contained in DELJIS. If a protective order is not presented, the law enforcement officer may consider other information in determining whether there is probable cause to believe that a protective order exists.
(d) If a law enforcement officer determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(e) The individual arrested shall be taken immediately before the Family Court. If the Family Court is not in session, the arrested person shall be taken before the nearest Justice of the Peace. In determining the amount of any bail, the Justice of the Peace or judicial officer shall take into consideration whether the defendant has previously violated a protective order.
(f) A law enforcement officer is immune from civil and criminal liability for an act or omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective order if the act or omission was done in a good faith effort to comply with this Part or in good faith reliance on information contained in DELJIS.
(g) The provisions of this Section apply to the enforcement of foreign protection orders under Part E of this Chapter."
Section 3. In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among States that enact it.
Section 4. If any provision of this Part or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Part which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
Section 5. This Act takes effect on July 1, 2002.
Section 6. This Act applies to protection orders issued before the effective date of this Act and to continuing actions for enforcement of foreign protection orders commenced before the effective date of this Act. A request for enforcement of a foreign protection order made on or after the effective date of this Act for violations of a foreign protection order occurring before the effective of this Act is governed by this Act.