(a) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child.

Terms Used In Delaware Code Title 13 Sec. 724A

  • Child: means a person who has not reached the age of 18 years. See Delaware Code Title 6 Sec. 4307
  • Dependent: A person dependent for support upon another.
  • Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
  • Testimony: Evidence presented orally by witnesses during trials or before grand juries.

(b) The above presumptions may be overcome if:

(1) There is not a criminal sentencing order prohibiting same; and

(2) There have been no further sexual offenses or criminal acts of violence; and

(3) The sex offender is in compliance with the terms of probation, if applicable; and

(4) The sex offender has successfully completed an intensive program of evaluation and counseling designed specifically for sex offenders and conducted by a public or private agency or a certified mental health professional, and as a result of such, does not pose a risk to children; and

(5) The sex offender has successfully completed a program of substance abuse counseling if the court determines such counseling is appropriate; and

(6) The best interests of the child would be served by giving residential or custodial responsibilities for the child or visitation with the child to the sex offender.

(c) Notwithstanding other provisions of this title, where the child who is the subject of the petition is also the victim of the sex offender, the court shall not award joint or sole custody to the sex offender, nor permit the sex offender to exercise custodial or residential responsibilities, nor permit any visitation, without considering expert testimony from a certified mental health professional that such a custodial, residential or visitation arrangement is in the child’s best interests. If such a custodial, residential or visitation arrangement is determined under this subsection to be in the best interests of the child, the court shall then apply the remaining factors set forth in subsection (b) of this section.

(d) In those cases in which more than 1 party is a sex offender, or where the party currently having custodial rights has permitted the sex offender to exercise residential or custodial responsibilities for the child or have visitation with the child, in violation of a criminal or civil court order, the case shall be referred by the court to the Division of Family Services of the Department of Services for Children, Youth and Their Families for investigation as to whether the child is abused, dependent or neglected as a result of these circumstances.

(e) If a child is conceived and subsequently born as the result of an act of rape of any degree or unlawful sexual intercourse, in either the first or second degree with the mother, the biological father of said child shall not be permitted visitation privileges under this section. This subsection shall apply only where the father pleads guilty or nolo contender, or is convicted of any degree of rape or unlawful sexual intercourse, in either the first or second degree.

76 Del. Laws, c. 174, § 6; 70 Del. Laws, c. 186, § 1.;