Case Summary: Mother filed an emergency petition for the modification of visitation against Father. Mother sought relief from visitation due to the alleged domestic violence between stepmother and Father. The Court first turned to 13 Del.C. 728 recognizing the standard for visitation between parent and child, but recognizing that the visitation shall be consistent with the child's best interests. Given the circumstances of the case, the Court acknowledged that the best interests statute required consideration of evidence of domestic violence as provided in Chapter 7A of Title 13. Under this section, the Child Protection from Domestic Violence Act, where the court finds an act of domestic violence to have occurred, the Court "shall determine a schedule, location and conditions for visitation that best protects the child and the victim of domestic violence from further violence." In this case, the Court found there were instances of violence that occurred between the children's stepmother and their Father, including stepmother biting father on the cheek, burning his hand with a cigarette and running over his foot. The Court also considered that both children have health problems such as obesity, learning disabilities, autism and chronic pneumonia. The Court determined, without expert testimony, that these issues must be factored into the maturity of the children and the influence that violence may have on them. The Court found that while Mother presented no evidence that father's visitation with the children, in the presence of stepmother, was causing significant physical or emotional harm to the children, given the domestic violence and the provisions of the Child Protection from Domestic Violence Act, the Court can impose certain conditions upon Father's visitation. The Court acknowledges that §728(a) of Title 13 requires proof of significant harm to the chld cause by past exposure to the environment. However, the Child Protection from Domestic Violence Act, as passed by the Delaware legislature, recognizes the "importance of protecting children before they are permanently scarred from the predictive harm that will most certainly follow where a household present an ongoing environment of domestic violence." Finally, the Court dismissed Father's argument that the statute only applies where violence is inflicted by a "parent" by stating that the purpose of the statute and Act is to protect children from violence including the harm caused by the violence that occurs in their homes (regardless of who is inflicting the violence).

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