Delaware Child Custody Laws

If you're splitting up with your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Delaware law deals with these issues, as well as grandparents visitation.

Types of Child Custody in Delaware

In Delaware there are two main classes of custody: legal custody and physical custody. With each type, parents may share joint custody, or one parent may have sole custody.

Legal Custody in Delaware

Legal custody concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. A parent with sole legal custody may make those decisions unilaterally, without getting the other parent's consent.

When parents have joint legal custody, they both have a right to be involved in the decision-making process. This can be structured in a number of ways. It's not unheard of for each parent may have the right to make decisions in different areas. For example, one parent may decide where the child will attend school, while the other could be the decision-maker on the child's religious upbringing.

Joint legal custody is by far the preferred outcome in custody cases, because it enhances the active participation of both parents in the child's life.

In both joint and sole legal custody situations, each parent has the right to request and receive from the other parent information concerning:

• the child's progress in school
• medical treatment
• significant developments in the child's life
• school activities and conferences
• special religious events, and
• other activities in which the parents may want to participate.

(13 Del. Code § 727(a) (2023).)

Physical Custody in Delaware

Physical custody refers to where a child primarily lives—which is why it's also known as "residential arrangements" in Delaware. It includes parents' responsibility for the routine daily care and control of their children, such as bathing, disciplining, or preparing meals.

When a parent has sole physical custody, the child lives with that parent (typically known as the "custodial parent"), while the noncustodial parent will usually have visitation (more on that below).

Parents can also share residential arrangements (also known as joint physical custody), although this doesn't necessarily mean the child spends an equal amount of time with each of them.

As a practical matter, joint residential arrangements work best when the parents live close to each other. This tends to reduce problems, especially transportation issues that can arise when a child actively participates in sports or other after-school activities.

Parenting Agreements

Parents always have the option of agreeing between themselves on how they'll handle child custody and visitation issues. In order to have the agreement made part of a court order, they'll need to spell out the details in a parenting plan and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests.

Ordinarily, the more detailed the parenting plan the better. This tends to reduce the possibility of confusion and future disputes. Some of the typical topics covered in these plans include:

• which parent's home will be considered the child's primary residence (in a joint physical custody situation, this may be important if a school district needs proof of a child's residency)
• where the child will spend vacations, school breaks, holidays, birthdays, and so forth
• what happens if there needs to be a change to the parenting schedule, particularly because of last-minute issues like a child's illness
• how will parents communicate with each other regarding the children (such as by email, text, or phone), especially if there's hostility between them
• how often and by what methods a parent may communicate with the child when the child is with the other parent
• times and locations for visitation drop-offs and pick-ups
• who will provide transportation for visitation, as well as to and from school and extracurricular activities
• if a parent needs a babysitter or other temporary child care, whether the other parent will have the "right of first refusal" to serve in that capacity
• what happens if one parent must relocate (more on that below), and
• how the parents will resolve future disagreements about the parenting plan (including any changes), such as using mediation or some other dispute resolution method rather than going straight back to the court.

An internet search will probably come up with plenty of other suggestions for what to include in your parenting plan. Also, if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting agreement. (You might ask about this when comparing online divorce services.)

How Do Delaware Judges Make Custody Decisions?

When parents can't reach an agreement on custody or visitation, a judge will have to resolve the issue, based on what's in the child's best interests.

When Delaware judges are deciding what's best for a child, they must consider all relevant factors, including:

• the child's and parents' wishes
• the child's relationships with the parents, grandparents, siblings, other household members, and anyone else who may significantly affect the child's best interests
• the child's adjustment to home, school, and community
• the child's and parents' mental and physical health
• how much both parents have met their responsibilities for the child's support, care, nurture, welfare, and education
• any evidence of domestic violence, and
• the criminal history of either parent or any other resident of the household.

(13 Del. Code § 722(a) (2023).)

Does a Parent's Gender Play a Role in Delaware Custody Cases?

No. Delaware doesn't establish a preference for either parent because of the parent's gender. Also, judges may not consider a parent's conduct if doesn't affect that parent's relationship with the child. (13 Del. Code § 722(b) (2023).)

Can Children Express a Preference in Delaware Custody Cases?

Although Delaware law calls for considering a child's wishes concerning custody, that doesn't necessarily mean the judge must follow the child's preferences. Still, judges shouldn't completely ignore the wishes of children who are mature enough to form an intelligent opinion on the issue—as long as it's not a "passing whim" or based on "temporary dissatisfaction" with one parent. (duPont v. duPont, 216 A.2d 624 (Del. 1966).)

Ordinarily, the older the children are, the more weight judges are likely to give their opinion about which parent they want to stay with most of the time, and how much time they want to spend with the other parent. But regardless of age, the judge won't follow a child's wishes if doing so wouldn't be in the child's best interest. The reasoning behind the wishes is key. For instance:

• If a kid simply wants to live with the parent who's more lenient or gives more lavish gifts, the judge probably won't give that child's preference much weight. But if a child expresses a desire to live with the parent who's more loving or engaged in parenting (for instance, by regularly helping with homework or accompanying the child to sports and other activities), the judge is much more likely to take that child's wishes into consideration.
• If a judge believes that a child has been manipulated or pressured to choose one parent over the other, the judge will probably discount the child's stated preference.

Do Children Have to Testify in Open Court?

Judges prefer not to have children appear in the courtroom. In fact, they try to keep children as far removed from custody proceedings as possible to avoid putting them in the uncomfortable position of having to choose between their parents.

In Delaware, the judge has the option of interviewing the child in chambers (the judge's office). Parents usually aren't permitted to sit in on the interview, but the judge may have the attorneys there. If either parent requests it, the judge must have a record of the interview made. Under certain limited conditions when a child isn't available to be interviewed, the judge may consider a statement that the child made out of court, as long as it's trustworthy. (13 Del. Code § 724 (2023).)

Judges may use the services of a professional (sometimes called a custody evaluator) to learn about a child's wishes. Judges also have the option of appointing a "guardian ad litem" (GAL) to represent the child's interests or—in particularly contentious cases—appointing an attorney for the child.

"Trial" Custody and Counseling

Judges in Delaware may grant temporary custody (either sole or joint) for up to six months in order to give parents the opportunity to demonstrate that they can cooperate with the custody arrangements. At the end of the temporary period, the judge may then continue the arrangement on a permanent basis or make changes as appropriate.

As part of the custody orders, judges may also order counseling for the parents (and the child, if that would be appropriate), to help them develop their parenting skills. (13 Del. Code § 727(b) (2023).)

Parents' Visitation Rights in Delaware

Delaware law is designed to permit and encourage frequent and meaningful contact between the child and both parents. Toward that end, every custody order must include a schedule of the child's contact with both parents, including visitation with the parent whose home isn't the child's primary residence. However, the judge may limit or even deny visitation altogether if it would endanger the child's physical health or significantly impair the child's emotional development. (13 Del. Code §§ 727(c), 728(a) (2023).)

Judges will consider the family's circumstances when setting a parenting schedule, including:

• each parent's work schedule
• the child's school schedule, and
• the child's extra-curricular activities.

In a typical visitation schedule, a noncustodial parent might have the child for one evening during the school week, overnight on alternate weekends, and for longer periods during school breaks. But there are any number of variations, and the most appropriate schedule will depend on the circumstances.

The courts much prefer that parents work out a visitation schedule between themselves. As with all parenting plans, judges will usually sign off on the parents' agreed visitation schedule as long as it appears to be in the child's best interests.

Can Children Refuse Visitation?

Normally, children aren't allowed to refuse to visit a parent until they're legally adults (in Delaware, that's when they reach age 18 or are otherwise emancipated). Until then it's the custodial parent's responsibility to see to it that the child obeys the visitation orders.

Of course, that's sometimes easier said than done, especially with older teenagers. If the parents can't work it out through discussions with the reluctant child or by getting outside help (such as a child psychologist), they might have to go back to court to request a modification of the existing visitation schedule (more on modifications below).

Domestic Violence and Custody in Delaware

Delaware law presumes that any parent who has committed domestic violence may not have sole or joint custody of a child, and the child may not primarily live with that parent. In some cases, an abusive parent may overcome that presumption—such as when that parent has:

• not committed any further acts of domestic violence
• successfully completed a program that's designed specifically for perpetrators of family violence
• successfully completed a program of alcohol or drug abuse counseling if the judge found that was appropriate, and
• demonstrated that having some custodial or residential responsibilities would be in the child's best interests.

(13 Del. Code § 705A (2023).)

If the judge allows visitation with a parent who's been abusive, there must be conditions that will protect the child from further abuse. (13 Del. Code § 705B (2023).) For instance, the judge may order that the visitation be supervised—often by trained personnel at a court-approved facility.

Modifying Custody or Visitation Orders in Delaware

The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to a custody order. For instance, a teenager may have a good reason to want to live with the noncustodial parent, such as intractable conflicts with the custodial parent's new spouse and children.

Be aware, however, that you aren't allowed to simply change the parenting schedule on your own, without court approval. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's review and approval.

You may apply to the court for a modification of the current orders concerning custody, visitation, or parent-child communication if you believe a change would be in the child's best interests. In Delaware, the rules and procedures for modifications depend on the type of order involved: visitation orders only, orders based on the parents' agreement, or orders issued after a trial.

Modification of Visitation

When a parent requests a change in only the visitation order—no matter how long it's been since the order was last issued or changed—the judge may modify visitation as long as it would be in the child's best interest. (13 Del. Code §§ 729(a) (2023).)

Modification of Agreed Custody Arrangements

If an existing custody order was based on the parents' written agreement (or an order to which they consented), a Delaware judge may modify custody any time after considering the same "best interests" factors that go into original custody decisions (as discussed above). The same is true for modifications of interim custody orders that a judge issued temporarily. (13 Del. Code §§ 729(b) (2023).)

Modification of Contested Custody Orders

Delaware's rules for modification are more complicated when the existing custody order was issued after a full trial—that is, when the parents couldn't agree and the judge had to hear the evidence and decide for them. Even in this situation, the rules are different, depending on when the most recent order was issued:

• When a parent applies for a modification within two years after the most recent custody order was issued, the judge must hold a hearing and decide, based on the evidence, if continuing the prior order would endanger the child's physical health or significantly impair the child's emotional development. The judge may grant a modification only if that's true.
• If the most recent order was issued more than two years before the parent applied for a modification, the judge will decide after considering the "best interests" factors that go into original custody decisions (discussed above), as well as:
  • whether the child is likely to be harmed by modifying the order and, if so, whether any advantages of a change are likely to outweigh the harm, and
  • how much both parents have obeyed the existing orders and met their legal parental responsibility.

(13 Del. Code § 729(c) (2023).)

Relocation and Child Custody in Delaware

A parent's relocation might warrant a modification of custody or visitation orders. Whenever a parent is moving out of state or far enough to have a real effect on the current custody arrangements (and the relocation will last for at least 60 days), Delaware law requires the judge to consider:

• the child's relationship with both parents as well as any siblings and other significant individuals in the child's life
• the child's age, developmental stage, and needs, as well as the probable impact of the relocation on the child's physical, educational, and emotional development
• whether suitable visitation arrangements would preserve the relationship between the child and the noncustodial parent (who's not moving), considering the logistics and the parents' financial circumstances
• the child's preference, taking into consideration the child's age and maturity
• whether the moving parent has had a pattern of promoting or hindering the child's relationship with the other parent
• whether the child's relocation will enhance the quality of life for both the child and the moving parent, taking into account any financial advantages, emotional benefits, and educational opportunities
• each parent's reasons for seeking or opposing the relocation, and
• any other factor affecting the child's best interest.

(13 Del. Code § 734 (2023).)

Enforcing Custody and Visitation Orders in Delaware

If your child's other parent isn't complying with custody or visitation orders, you may file a motion (written legal request) seeking the court's intervention. A judge will hold a hearing on the enforcement request to decide whether the other parent has "violated, interfered with, impaired, or impeded" your custody or visitation rights, or your child's rights to parental contact. If so, the judge may impose any fair sanctions or remedies to ensure frequent and continuing parent-child contact, including one or more of the following:

• extra visitation with the child
• a temporary transfer of custody or primary residence (or both) for up to 30 days
• a surcharge penalty of up to 10% of the monthly child support obligation for each of a noncustodial parent's visitation violations, as long as those violations were more than minimal and the parent didn't have a good reason or give the custodial parent enough notice
• a fine, or
• a term of imprisonment if a parent is found to be in contempt of prior court orders.

In addition, the judge must order the other parent to pay your costs and reasonable attorney's fees related to the enforcement proceeding. (13 Del. Code § 728(b) (2023).)

Delaware law also allows judges to include a provision in custody orders that permits police officers to enter private property to take physical custody of a child to enforce the order's custody terms. (13 Del. Code § 727(e) (2023).)

You should also know that interference with custody is a violation of Delaware's criminal code, resulting in fines and/or jail time. Usually it's a Class A misdemeanor, but if the person interfering with custody removes the child from the state, it's a Class G felony. (11 Del. Code § 785 (2023).)

Grandparents' Visitation Rights in Delaware

Under Delaware law, judges may not grant grandparents (or any other nonparents) the right to visit a child over the objection of either parent, unless:

• the objecting parent has abused or neglected the child, or
• the grandparent or other nonparent proves by clear and convincing evidence that a parent's objection is unreasonable, and proves by a preponderance of the evidence that allowing the visitation will not substantially interfere with the parent-child relationship.

Also, a judge won't order visitation for grandparents or other nonparents unless it's in the child's best interests (considering all of the best-interests factors discussed above). This is true even when the parents have agreed to a court order for visitation by nonparents. (Del. Code tit. 13, § 2412(a) (2023).)

In one case, the Delaware Supreme Court found that the judge shouldn't even have allowed the grandparents supervised visitation in a "therapeutic setting," because the grandparents hadn't provided evidence that the visitation wouldn't interfere with the parent-child relationship. In that case, the grandparents had undermined the parents' authority and relationship with their children in several ways, including by:

• saying they wouldn't tell the parents if the children confided in the grandparents about drug and alcohol use
• repeatedly trying to persuade the kids to push their parents for more visitation time beyond weekly dinners with the grandparents
• accusing the parents of child abuse, elder abuse, and brainwashing because they had resisted the grandparents' requests to allow more frequent visits
• joining Facebook groups such as "Narcissist Parents Who Abuse Their Own Children," after the parents ended visitation with the grandparents, and
• showing up at the children's sports games over the parents' objections, and on one occasion refusing to leave after frightening one of the kids.

(Grant v. Grant, 173 A.3d 1051, Del. 2017).)

When You Need a Lawyer's Help With Custody or Visitation

It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. In fact, in court proceedings involving custody or visitation, the judge normally orders the parents to participate in mediation.

But if mediation doesn't work or isn't appropriate (such as in cases of domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.