Protection from Abuse (PFA)

Governor John Carney recently signed House Bill 141 into law.  The Bill amends Section 1042 of Title 10 of the Delaware Code regarding protection from abuse proceedings by creating a new subsection (f).  This subsection permits the Family Court to interview a child outside of the presence of the parties.  Specifically, the Bill provides:

1042. Commencement of action; procedure.

(f) The Court may examine a child outside the presence of the parties for the purpose of obtaining the child’s testimony and ascertaining the truth of a matter asserted by a party to the proceeding. The Court may permit counsel to be present at the examination, and to also examine the child. The Court may permit a party who is not present for the examination to submit questions of fact for the Court to use in ascertaining the testimony of the child. The Court shall cause a record of the examination to be made and it shall be made a part of the record in the case.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or


A prior post on this blog explored the use of social media to in custody cases.  As the  recent post by Mark Ashton, a Partner in our Exton office, points out social media to can have an even greater significance in the context of a protection from abuse order.  His post, entitled “Posts on Social Media, Go to Jail – How a Facebook Post Violated a Court Order” discusses a recent Pennsylvania action in which a contempt order issued for violation of a protective order because the respondent posted a series of Facebook comments about the petitioner.  Interestingly, the protective order specifically prohibited the respondent from posting anything about the petitioner on social media.  Although I have not seen a similar restriction in a Delaware protective order, it is something to be aware of.  Petitioners here may begin to request this type of protection in the future.

Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or

An Order of Protection from Abuse may be issued when one family member commits an act or acts of domestic violence against a member of a protected class.  The protected class includes family members or “former spouses; persons cohabitating together who are holding themselves out as a couple . . . persons living separate and apart with a child in common; or persons in a current or former substantive dating relationship.”  10 Del. C. §1041(2).   The case of Division of Family Services v. James, No. 643, 2014 (Nov. 16, 2014) asked the Delaware Supreme Court to determine whether the term “family” includes the relationship between a father and his children after an order issues terminating his parental rights.  The Supreme Court examined the definition of “family” and noted that §1041(2) provides that the definition of the term “family” applies “regardless . . .of . . . whether parental rights have been terminated.”  At the conclusion of its analysis, the Supreme Court answered the question in the affirmative.  The decision may be read in its entirety here.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or

At the heart of every Petition for Order of Protection from Abuse (“PFA”) is the question of whether a respondent has committed an act of abuse.  That very issue was presented to the Delaware Supreme Court in the case of King v. Booker, No. 29, 2015 (Aug. 20, 2015).

In The Family Court

The procedural history and details of the case are set forth in greater detail in the decision.  In a nutshell, Ms. King filed a PFA against Mr. Booker.  She alleged that Mr. Booker forced his way into her residence (she was not there at the time), and while he was there he took some personal property.  At the hearing before the Family Court Commissioner, Mr. Booker admitted that “he kicked in the door” to Ms. King’s residence and took some items that “either were gifts that he had given King, gifts that King had given him, or items that he had purchased for himself.”  Id. at 3.  The Commissioner concluded that Booker’s admission that he kicked in the door and took items from the home established that he had engaged in conduct that constituted abuse.

Mr. Booker appealed that decision to a Family Court Judge.  The Judge overturned the Commissioner’s Order and directed that the PFA be vacated.  The Judge determined that, among other things, the “act of kicking in the door was not an act of abuse because a reasonable person in [King’s] shoes would not have felt threatened or harmed.”  The Judge also concluded that the removal of items from the home was not considered an act of abuse because “King failed to prove that [Booker] had no property interests in the items he took.” Id. at 5.

An appeal by Ms. King followed in which she argued, inter alia, that the Judge erred in finding that Mr. Booker’s conduct did not constitute abuse.

The Appeal

The Supreme Court agreed with Ms. King.  The Court noted that abuse includes “intentionally or recklessly damaging, destroying or taking the tangible property of another person.”  13 Del. C. § 1041(1).  The Court further noted that Mr. Booker’s testimony, which was not contradicted, was that he intentionally kicked in the locked front door and took property.  Based on this evidence, the Court concluded that the Family Court Commissioner did not err in concluding that the evidence established that an act of abuse occurred.  The Court remanded the case to the Family Court with instructions that the PFA Order issued by the Commissioner be reinstated.


leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or