Limiting the Domestic‑Violence Custody Presumption to Custody Cases: Roy Harris v. DSCYF and Due Process in Delaware Termination of Parental Rights

I. Introduction

The Delaware Supreme Court’s order in Roy Harris v. Department of Services for Children, Youth and Their Families (“Harris”) clarifies a critical boundary in Delaware family law: the statutory domestic‑violence rebuttable presumption contained in 13 Del. C. § 705A applies only in child custody proceedings and may not be imported into termination of parental rights (“TPR”) proceedings.

The case also underscores the constitutional dimension of TPR cases. The Court holds that using the § 705A presumption in a TPR case improperly shifts the burden of proving “best interests” to the parent at the wrong stage of the analysis, raising due process concerns given the fundamental liberty interest parents have in the care and custody of their children.

On the procedural side, the Court explains how interlocutory motions (here, motions to stay and to reargue) become moot and are subsumed within a final judgment, and therefore must be reviewed through an appeal of that final order.

In short, this decision:

Holds that § 705A cannot be applied in TPR proceedings;
Reaffirms the two‑step clear‑and‑convincing evidence framework governing TPR cases;
Warns against shifting the burden of proving “best interests” to the parent at the first step of that framework; and
Clarifies the finality and mootness of interlocutory motions once a final TPR order is entered.

II. Background of the Case

A. Facts and Procedural History

In August 2022, Roy Harris (“Father”) was arrested for engaging in domestic violence in the presence of minor children. He ultimately pled guilty to:

Aggravated menacing, and
Endangering the welfare of a child.

He was sentenced to prison. While Father was incarcerated, the Delaware Department of Services for Children, Youth, and Their Families (“DSCYF”) took custody of his two minor children. As required by statute and Family Court rules, the court held a series of review, permanency, and compliance hearings from November 2022 through October 2024.

At a dispositional hearing on January 17, 2023, DSCYF submitted a case plan for Father. One central component required Father to:

Complete an anger management course designed for domestic violence offenders, to address safety concerns arising from his history of domestic violence.

B. The TPR Petition and Hearing

On September 20, 2023, DSCYF petitioned the Family Court to terminate Father’s parental rights under 13 Del. C. § 1103(a)(5) (failure to plan adequately for the children’s needs and development). The court set a TPR hearing for January 29, 2024, but Father requested stays and postponements to give himself more time to work his case plan; the court granted several of those requests.

The TPR hearing was eventually held on February 25, 2025. At that hearing, Father presented evidence that he had successfully completed most of his case plan, including the required anger management program tailored to domestic violence offenders.

C. The Family Court’s TPR Order

On April 9, 2025, the Family Court issued an order terminating Father’s parental rights over both children, finding:

He had failed to plan adequately for their needs under § 1103(a)(5); specifically, he failed to secure stable housing and to resolve domestic violence concerns.

In assessing the “domestic violence” component of Father’s case plan, the Family Court applied 13 Del. C. § 705A, a statute from the Child Protection from Domestic Violence Act. Section 705A creates a rebuttable presumption that a perpetrator of domestic violence should not be awarded sole or joint custody, nor be the primary residential parent, unless stringent conditions are met.

The Family Court required Father to overcome that presumption, including by demonstrating that giving him custodial or residential responsibilities would be in the children’s best interests, and concluded that he had not met that burden.

D. Post‑Hearing Motions

After the TPR hearing but before the TPR order was issued, Father filed motions to stay the proceedings. The court denied those motions. On April 8, 2025, Father filed a further motion (the “April 8th Motion”) seeking to reargue the orders denying a stay.

The next day, on April 9, 2025, the Family Court issued the TPR Order, without deciding the April 8th Motion. After the TPR Order, Father filed an “Omnibus” motion on April 22, 2025 (the “Post‑TPR Motion”), seeking to:

Vacate the TPR Order,
Reopen the record, and
Preserve certain evidence.

The Family Court held the Post‑TPR Motion to be moot, given that the TPR Order already resolved the merits of the case.

E. Issues on Appeal

Father raised three principal arguments before the Delaware Supreme Court:

The Family Court committed legal error by applying 13 Del. C. § 705A—a custody provision—to a TPR proceeding.
The Family Court abused its discretion by denying:
- the April 8th Motion (seeking to reargue the denial of stays), and
- the Post‑TPR Motion (seeking to vacate and reopen the record).
The Family Court’s analysis in the TPR Order violated his due process rights, particularly by misallocating the burden of proof concerning the children’s best interests.

III. Summary of the Supreme Court’s Decision

The Delaware Supreme Court (Chief Justice Seitz, and Justices Valihura and Griffiths, with Justice Griffiths writing) held:

Section 705A applies exclusively to custody proceedings and not to TPR proceedings.
- Relying on DFS v. O’Bryan and January v. DFS, the Court concluded that statutes in Chapter 7A (including § 705A) “deal exclusively with Family Court custody proceedings.”
Applying § 705A in a TPR proceeding raises serious due process concerns because:
- It imposes on the parent an unfair burden to prove that granting him custody is in the child’s best interests at the first step of the TPR analysis; and
- It thereby misplaces the burden of proof regarding best interests, which under Delaware law must be decided only after the State has proven, by clear and convincing evidence, one of the statutory grounds for termination.
The TPR Order is reversed and the case remanded.
- On remand, the Family Court must reconsider whether Father’s parental rights should be terminated without any reliance on § 705A.
No abuse of discretion occurred regarding the April 8th Motion.
- Once the Family Court entered the TPR Order, that final judgment subsumed prior interlocutory rulings and rendered the April 8th Motion effectively moot.
The Post‑TPR Motion is moot in light of the Supreme Court’s decision.
- Because the Supreme Court itself reversed the TPR Order and remanded for further proceedings, there was no separate, live controversy regarding the Post‑TPR Motion.

IV. Detailed Analysis

A. Precedents Cited and Their Influence

1. DFS v. O’Bryan, 164 A.3d 58 (Del. 2017)

In O’Bryan, the Court interpreted the Child Protection from Sex Offenders Act, which like § 705A is codified in Chapter 7A of Title 13 but in a different subchapter. There, the Court held:

"The Sex Offenders Act is part of Subchapter II of Chapter 7A of Title 13, which deals exclusively with Family Court custody proceedings."

This structural reading—that Chapter 7A as a whole is designed for custody determinations—was pivotal in Harris. The Supreme Court reasoned that because:

§ 705A is also within Chapter 7A, and
Subchapter I (Child Protection from Domestic Violence Act) is parallel in form and function to Subchapter II (the Sex Offenders Act),

it follows that § 705A, like the Sex Offenders Act provisions, “deals exclusively with Family Court custody proceedings.”

Thus, O’Bryan provided the structural and contextual basis for holding that § 705A cannot be extended into the TPR context.

2. January v. DFS, 91 A.3d 561, 2014 WL 1713085 (Del. Apr. 28, 2014) (TABLE)

In January, the Court discussed the definition of “perpetrator of domestic violence” under 13 Del. C. § 703A, another section in the same subchapter as § 705A. The Court noted that this definition:

"would be relevant to creating a rebuttable presumption against awarding custody of a child in a custody proceeding, but does not have any apparent relevance to termination of parental rights proceedings."

Harris explicitly invokes January to reinforce the point that the domestic‑violence‑related presumptions in Chapter 7A were crafted for custody allocations, not for the more drastic step of severing parental rights altogether. This prior observation about § 703A is extended and formalized in Harris to cover § 705A’s presumption itself.

3. In re Heller, 669 A.2d 25 (Del. 1995)

Heller is central to the constitutional framing. There the Court held:

Natural parents have a fundamental liberty interest in the care, custody, and management of their children.
When the State seeks to terminate that relationship, it must afford due process protections.

By citing Heller, the Harris Court underscores that:

TPR proceedings implicate the highest level of constitutional protection in the family‑law context; and
Statutory mechanisms that might be appropriate in custody matters cannot lightly be imported into TPR matters if they compromise the fairness or burden of proof standards required by due process.

This backdrop is key to the Court’s concern that § 705A, when used in a TPR context, “subjects Father to an unfair burden of proof” and misallocates the burden regarding the children’s best interests.

4. Brock v. DSCYF, 963 A.2d 781 (Del. 2008)

Brock articulates the two‑step analysis required in Delaware TPR proceedings:

Grounds for termination: The trial court must find, by clear and convincing evidence, that at least one of the grounds listed in 13 Del. C. § 1103(a) has been met.
Best interests: Only after that finding may the court determine whether there is clear and convincing evidence that termination is in the child’s best interests, applying the factors in 13 Del. C. § 722.

Harris applies this framework to show how the Family Court erred: by importing the § 705A presumption into step one, it effectively required Father to prove “best interests” before DSCYF had met its burden on the statutory ground (failure to plan), contrary to the sequencing and burden allocation established in Brock.

5. In re Stevens, 652 A.2d 18 (Del. 1995)

Stevens provides the standard of review: when an appeal raises issues of law, the Supreme Court’s review is de novo, and it will set aside erroneous interpretations of law. This empowered the Court in Harris to correct the Family Court’s legal error in applying § 705A to a TPR case.

6. George v. DSCYF, 150 A.3d 768, 2016 WL 6302525 (Del. Oct. 27, 2016) (TABLE)

This case is cited for the principle that claims of constitutional infringement (including due process claims in TPR contexts) are reviewed de novo. This justified the Court’s independent constitutional assessment of how the § 705A presumption affected Father’s rights.

7. Powell v. DSCYF, 963 A.2d 724 (Del. 2008)

Powell establishes that once a trial judge has correctly applied the law, appellate review is limited to checking for abuse of discretion. Although Harris ultimately identifies legal error, the Court also uses this standard when evaluating the Family Court’s handling of the April 8th and Post‑TPR Motions.

8. Tyson Foods Inc. v. Aetos Corp., 809 A.2d 575 (Del. 2002)

Tyson Foods defines a final judgment and explains how interlocutory rulings are subsumed into that final judgment:

A final judgment resolves the merits and leaves nothing for future decision.
Prior interlocutory orders become effectively final through incorporation into the final judgment.
Those orders must then be reviewed via an appeal of the final judgment, not through separate motions.

Harris applies this reasoning to hold that:

Once the Family Court entered the TPR Order (a final judgment), the April 8th Motion was moot as a separate matter, and any complaint about the earlier stay rulings had to be brought via the appeal of the TPR Order; and
The Supreme Court’s own reversal of the TPR Order rendered the Post‑TPR Motion moot.

B. Legal Reasoning in Detail

1. The Scope of § 705A: Custody Only, Not TPR

The core interpretive issue was whether 13 Del. C. § 705A—a domestic‑violence rebuttable presumption—could lawfully be applied in a TPR proceeding. Section 705A provides, in relevant part:

"(a) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child.

(b) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence.

(c) The above presumptions shall be overcome if there have been no further acts of domestic violence and the perpetrator of domestic violence has:
(1) Successfully completed a program ... for perpetrators of family violence ...
(2) Successfully completed alcohol or drug counseling if appropriate; and
(3) Demonstrated that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child."

The Supreme Court’s reasoning proceeds in three main steps:

Textual and structural context: § 705A is located in Chapter 7A (“Child Protection from Domestic Violence and Sex Offenders Act”). This chapter is divided into:
- Subchapter I – Child Protection from Domestic Violence Act (where § 705A is located), and
- Subchapter II – Child Protection from Sex Offenders Act.
Both subchapters are parallel in structure and language.
Prior interpretation: In O’Bryan, the Court already held that Subchapter II “deals exclusively with Family Court custody proceedings.” In January, the Court indicated that definitions in § 703A are relevant for custody presumptions, and not for TPR.
Inference: Given the parallel structure of the two subchapters and the Court’s prior guidance, § 705A is likewise limited to custody cases, not TPR.

From this, the Court states explicitly:

"Therefore, consistent with our opinion in O'Bryan, we hold that § 705A also 'deals exclusively with Family Court custody proceedings.'"

Thus the Family Court’s reliance on § 705A in a TPR proceeding was a clear error of law.

2. The Two‑Step TPR Framework and Misallocation of the Burden

The Court revisits the established TPR framework from Brock:

Step One – Statutory Ground: The Family Court must find, by clear and convincing evidence, that at least one ground in § 1103(a) is met.
Step Two – Best Interests: If and only if a ground is met, the court must then decide—again by clear and convincing evidence—whether termination is in the child’s best interests under § 722.

Here, DSCYF sought termination under § 1103(a)(5) (“failure to plan adequately for the child’s needs and development”). For that ground, the Family Court had to determine whether Father failed to comply with his case plan (which included addressing domestic violence).

However, instead of simply assessing compliance with the plan and the evidence of domestic violence remediation, the Family Court:

Applied § 705A’s domestic‑violence presumption to the analysis of Father’s plan compliance; and
Required Father to overcome the statutory presumption in § 705A, which included proving that giving him custodial or residential responsibilities was in the children’s best interests.

By doing this:

The Family Court effectively folded the best interests inquiry (step two) into the plan‑compliance inquiry (step one); and
Crucially, the Court put the burden on Father to prove that his custody would be in the children’s best interests before the State had carried its own burden to prove a ground for termination.

The Supreme Court characterizes this as:

Subjecting Father to an unfair burden of proof when § 705A is applied in the TPR context; and
A misplacement of the burden on “best interests” at the first step of the TPR analysis.

This misallocation is not a mere technical error; in a TPR proceeding—where the fundamental liberty interest in parenting is at stake—it has constitutional significance.

3. Due Process Concerns

Drawing on Heller, the Court reiterates:

Parents have a fundamental liberty interest in their relationship with their children.
Before the State may terminate this relationship, it must provide the parent the “requisite due process protection.”

Applying § 705A to a TPR case:

Imposes a heightened, parent‑side burden of proof (overcoming a presumption against custody);
Forces the parent to prove that granting custody is in the child’s best interests prematurely, during what should be the State’s burden stage (step one); and
Risks termination of parental rights not because the State met its burden under § 1103(a) and § 722, but because the parent failed to overcome a presumption designed for a different type of proceeding.

Although the Court frames this as giving rise to “due process concerns,” its remedy—reversal and remand with a clear prohibition on using § 705A in TPR—makes clear that combining the custody presumption with TPR standards is incompatible with the procedural protections required in TPR cases.

4. Treatment of the April 8th and Post‑TPR Motions

Father argued that the Family Court abused its discretion in denying his:

April 8th Motion (motion to reargue and for relief from the court’s earlier orders denying a stay); and
Post‑TPR Motion (omnibus motion to vacate the TPR Order, reopen the record, and preserve evidence).

The Supreme Court’s handling is grounded in Tyson Foods’s articulation of finality and interlocutory orders.

a. April 8th Motion

The April 8th Motion attacked prior interlocutory rulings (orders refusing to stay the proceedings). The Supreme Court held:

When the Family Court issued its April 9 TPR Order, that order was a final judgment resolving the merits of the TPR petition.
Under Tyson Foods, prior interlocutory rulings, including those about stays, were incorporated into the final judgment.
Any challenge to those rulings had to be made on appeal from the final order, not through a separate motion for reargument.

Thus, the Supreme Court found no abuse of discretion in the Family Court’s treatment of the April 8th Motion. In practical terms, the alleged errors in denying stays are subsumed in the appeal of the TPR Order itself (which the Supreme Court has now reversed on other grounds).

b. Post‑TPR Motion

The Post‑TPR Motion sought to vacate the TPR Order and reopen the record. The Family Court denied it as moot, given the issuance of the TPR Order. The Supreme Court’s own decision—reversing the TPR Order and remanding—renders any dispute about that denial moot as well. On remand, the TPR determination will have to be redone in compliance with the Supreme Court’s instructions, making the prior motion functionally irrelevant.

V. Complex Concepts Simplified

1. Rebuttable Presumption

A rebuttable presumption is a legal rule that tells the court to assume something is true unless and until someone produces enough evidence to prove otherwise.

Under § 705A:

The court must presume that a perpetrator of domestic violence should not get sole or joint custody, or be the primary residential parent.
The perpetrator can rebut this presumption, but only by:
- Showing no further acts of domestic violence,
- Successfully completing specialized counseling programs, and
- Demonstrating that awarding custody is in the child’s best interests.

In a custody case, that mechanism is permissible because the entire proceeding is about where the child lives and who has decision‑making power. But in TPR proceedings, this presumption unfairly shifts burdens and effectively changes the rules mid‑game.

2. Clear and Convincing Evidence

Clear and convincing evidence is a high standard of proof—more demanding than “more likely than not” (preponderance of the evidence), but less than “beyond a reasonable doubt” (criminal standard). The evidence must make it highly probable that the asserted fact is true.

In Delaware TPR cases, the State must meet this standard twice:

To prove at least one statutory ground for termination under § 1103(a); and
To prove that termination is in the child’s best interests under § 722.

3. Failure to Plan – 13 Del. C. § 1103(a)(5)

“Failure to plan” refers to a parent’s inability or unwillingness to take adequate steps to meet the child’s physical, emotional, and developmental needs, despite being given a case plan and reasonable time and services to work it.

In practice, DSCYF develops a plan specifying what the parent must do (secure housing, attend treatment, complete classes, maintain contact, etc.). If, after a sufficient period, the parent has not sufficiently complied and the child’s needs remain unmet, DSCYF may seek TPR under this ground.

In Harris, “failure to plan” centered on:

Housing stability; and
Resolving domestic violence concerns (partly through anger‑management/compliance and partly through safety‑related factors).

4. Interlocutory Orders, Final Judgments, and Mootness

Interlocutory order: A temporary or preliminary ruling that does not resolve the entire case—for example, an order denying a motion to stay or setting a hearing date.
Final judgment: An order that resolves the substantive dispute and leaves nothing further for the court to decide—for example, a TPR order terminating parental rights.
Mootness: A case or issue becomes moot when there is no longer a live controversy for the court to decide; the court’s decision would have no practical effect.

In Harris:

Once the Family Court entered the TPR Order, prior interlocutory rulings (including the stay decisions challenged in the April 8th Motion) became part of the final judgment and could only be reviewed on appeal.
The Supreme Court’s own reversal of the TPR Order made the Post‑TPR Motion (to vacate and reopen) unnecessary, rendering its denial moot.

VI. Impact and Implications

A. Immediate Impact on Delaware TPR Practice

Harris has a direct and immediate effect on how TPR cases involving domestic violence must be litigated and decided in Delaware:

Family Court judges may not rely on § 705A’s rebuttable presumption when deciding TPR petitions.
DSCYF cannot structure TPR arguments around the idea that a domestic‑violence perpetrator must overcome § 705A conditions to avoid termination.
Parents’ counsel can object if any party or the court tries to import § 705A or § 703A based presumptions into TPR analysis.

Domestic violence remains highly relevant in TPR cases—especially at the best‑interests stage—but it must be evaluated under:

The § 1103(a) grounds (e.g., failure to plan, chronic abuse, etc.), and
The § 722 best‑interests factors, which already include specific consideration of domestic violence and safety concerns.

B. Clarifying the Distinction Between Custody and TPR

The decision strengthens the conceptual divide between:

Custody proceedings: where parental status is preserved, but legal and physical custody are allocated among parents and sometimes third parties; and
TPR proceedings: where the State asks to sever the parent‑child legal relationship altogether.

The Court effectively says: Custody tools belong in custody cases; TPR must be governed by the specific statutory framework and constitutional protections tailored to the complete loss of parental status.

C. Due Process and Burden‑Shifting Safeguards

By rejecting the application of § 705A in TPR cases, the Court elevates due process safeguards in several ways:

It protects the sequence of proof: the State must first prove a ground for termination.
It protects the allocation of burdens: the State, not the parent, bears the burden on statutory grounds and on best interests, under a clear‑and‑convincing standard.
It prevents the inadvertent use of a cultivated presumption (designed for a narrower custody context) to tip the scales in the far more drastic TPR context.

This reasoning may influence future cases whenever:

Trial courts attempt to import statutory presumptions from one family‑law context into another; or
Procedures risk shifting the burden onto parents in ways that erode due process in TPR proceedings.

D. Potential Litigation and Policy Effects

Prior TPR cases: Parties in other cases where § 705A was used in TPR proceedings may seek relief on direct appeal. Whether collateral or post‑judgment challenges would succeed will depend on procedural posture and retroactivity doctrines, but Harris provides a clear basis for arguing legal error.
Case planning by DSCYF: While DSCYF can and should continue including domestic‑violence remediation in case plans, it must not treat § 705A as a threshold requirement for avoiding TPR. Compliance should be evaluated against the case plan and safety evidence, not against the statutory presumption.
Judicial training and guidance: Family Court judges and practitioners will likely receive updated training clarifying that:
- Chapter 7A presumptions (both domestic‑violence and sex‑offender presumptions) are custody‑only tools; and
- TPR decisions must adhere strictly to §§ 1103 and 722, within constitutional bounds.

E. The Role of Domestic Violence in Future TPR Cases

Harris does not diminish the seriousness of domestic violence in child‑welfare decisions. Instead, it refocuses domestic‑violence analysis in TPR cases onto the proper legal channels:

At step one (statutory ground), domestic violence may demonstrate a parent’s inability to provide a safe environment, support a finding of “failure to plan,” or show ongoing endangerment.
At step two (best interests), domestic violence directly informs:
- The child’s safety and well‑being;
- The emotional and physical risks posed by reunification; and
- The wisdom of permanently severing parental ties versus pursuing alternative arrangements.

The key point is that domestic violence must be evaluated under the correct statutes and standards, without layering on a custody‑specific presumption that fundamentally alters who carries which burden, and when.

VII. Conclusion

The Delaware Supreme Court’s decision in Roy Harris v. DSCYF is a significant clarification of the law governing termination of parental rights:

It holds that the domestic‑violence rebuttable presumption in § 705A applies exclusively to custody proceedings and may not be used in TPR cases.
It reaffirms that TPR proceedings follow a two‑step, clear‑and‑convincing evidence process:
1. First, the State must prove a ground for termination under § 1103(a);
2. Then, it must separately prove that termination is in the child’s best interests under § 722.
It emphasizes that due process forbids burden‑shifting mechanisms that force parents to prove best interests at the wrong stage or under a statutory presumption designed for a different context.
It clarifies how interlocutory orders (like denials of stays) are subsumed under a final TPR order and must be reviewed through appeal of that final judgment, while subsequent motions may become moot when the appellate court reverses the underlying order.

On remand, the Family Court must reconsider whether Father’s rights should be terminated, this time without “regard to, or consideration of, § 705A.” Going forward, Harris stands as a guiding precedent ensuring that Delaware TPR proceedings remain strictly tethered to the statutory and constitutional framework designed for the most consequential decision family courts can make: the permanent severance of the parent‑child relationship.

Limiting the Domestic‑Violence Custody Presumption to Custody Cases: Harris v. DSCYF and Due Process in Delaware Termination of Parental Rights Proceedings