Child Custody in Delaware

Overview of Delaware Custody Law

Delaware addresses child custody under 13 Del. C. Sections 721 through 733. The Delaware Family Court determines custody based on the best interests of the child, which is the controlling standard in all custody proceedings. Delaware does not presume that any particular custody arrangement is in the child’s best interest, and the court evaluates each family’s circumstances individually.

For a broader overview of custody principles, see our guide on child custody laws explained.

Types of Custody in Delaware

Delaware recognizes several custody arrangements:

• Sole Custody — One parent has both legal decision-making authority and primary physical custody. The other parent typically receives a visitation schedule.
• Joint Legal Custody — Both parents share the right and responsibility to make major decisions regarding the child’s education, health care, and welfare. Joint legal custody requires that the parents are able to cooperate and communicate effectively.
• Joint Physical Custody — The child spends significant time living with each parent. This does not necessarily require an equal division of time, but rather a schedule that gives each parent substantial residential contact.
• Divided Custody — Different children are placed with different parents, based on each child’s individual needs and best interests.
• Shared Custody — Both parents have the child for significant, roughly equal periods of time.

The court has discretion to combine these forms to create the arrangement that best serves the child’s welfare.

Best Interests Factors

Under 13 Del. C. Section 722, the court considers a range of factors when determining custody:

• The wishes of the parents and the child as to custody and residency
• The interaction and interrelationship of the child with parents, siblings, and other significant persons
• The child’s adjustment to home, school, and community
• The mental and physical health of all individuals involved
• Past and present compliance by both parents with their rights and responsibilities to the child
• Evidence of domestic violence
• The criminal history of any party or household member
• The nature and quality of the child’s relationship with each parent
• The geographic proximity of the parents’ residences

Delaware law also provides that the court shall not give preference to one parent based solely on their gender.

Child’s Preference

Delaware does not set a specific age at which a child may choose which parent to live with. The court may consider the wishes of the child as one factor in the best interests analysis. In practice, the weight given to a child’s preference increases as the child matures and demonstrates the capacity for reasoned judgment. The court may interview the child in chambers or appoint a guardian ad litem to assess and represent the child’s interests.

Mandatory Mediation

Delaware requires mandatory mediation in contested custody cases. Before proceeding to a contested hearing, the court refers parties to mediation to attempt to resolve custody and visitation disputes. Mediation provides a structured environment for parents to negotiate a parenting plan with the assistance of a neutral third party. If mediation is unsuccessful, the case proceeds to a court hearing. Mediation may be waived or modified in cases involving domestic violence or other circumstances that make it inappropriate.

Parenting Plans

Delaware courts require parents to submit a proposed parenting plan that addresses the residential schedule, decision-making authority, holiday and vacation arrangements, communication between households, and procedures for resolving future disagreements. If the parents cannot agree, the court will establish a plan based on the best interests of the child.

Relocation

Under 13 Del. C. Section 727, a parent seeking to relocate with the child must provide at least 60 days written notice to the other parent. If the other parent objects, the court evaluates the proposed relocation based on the best interests of the child, considering the reasons for the move, the impact on the child’s relationship with both parents, and whether the proposed new residence offers advantages for the child. The court may modify custody or the visitation schedule as necessary.

Grandparent Visitation

Grandparents may petition for visitation under 10 Del. C. Section 1031(7). The court considers whether the grandparent has a substantial and positive prior relationship with the child and whether visitation would be in the child’s best interests. Consistent with the constitutional framework set by Troxel v. Granville, the court gives appropriate weight to a fit parent’s decisions regarding the child’s associations.

When to Seek Legal Help

Delaware’s custody framework involves mandatory mediation and a detailed best interests analysis. Whether you are establishing an initial custody arrangement, responding to a relocation request, or seeking to modify an existing order, a family law attorney can help you understand your rights and present your case effectively. Schedule a free consultation to discuss your custody matter.