Subchapter III. Enforcement
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.
(c) The notice required by paragraph (b)(2) of this section must state that:
(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.
(c) A warrant to take physical custody of a child must:
(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.;