Delaware child custody laws require Family Court to decide custody based on the “best interests of the child” standard set out in Title 13 of the Delaware Code, weighing eight specific factors before assigning legal and physical custody between parents. Mediation is a required step before a judge rules, and once an order is in place, strict rules govern how it can be modified, enforced, or affected by a move out of state.
How Delaware Decides Custody
Every custody decision starts with the same question: what arrangement serves the child best? The statute lists eight factors the court must weigh, and judges can consider anything else relevant to the child’s welfare.1Justia. Delaware Code 13-722 – Best Interests of Child
- Each parent’s wishes for custody and the child’s living arrangement.
- The child’s own wishes, if the child is mature enough to express a preference. The preference is heard but is not binding.
- The child’s relationships with parents, grandparents, siblings, and anyone else in the household who plays a significant role.
- How well the child has adjusted to their current home, school, and community. Courts are reluctant to uproot a child who is thriving.
- The mental and physical health of everyone involved, not just the parents.
- Each parent’s past compliance with their responsibilities toward the child.
- Any evidence of domestic violence, which carries serious weight and can be decisive in close cases.
- Criminal history for both parents and anyone else in the household, including guilty and no-contest pleas.1Justia. Delaware Code 13-722 – Best Interests of Child
Two things the court is barred from doing. It cannot presume that a mother or father is the better parent based on sex, and it cannot consider a parent’s personal conduct unless that conduct directly affects the parent-child relationship.1Justia. Delaware Code 13-722 – Best Interests of Child
In complex cases, the court may appoint an attorney to represent the child as guardian ad litem, order a psychological evaluation, or require a home study to get a clearer picture of family dynamics.
Legal Custody and Physical Custody
Delaware splits custody into two separate questions, and they don’t always go to the same parent.
Legal custody is the authority to make major decisions about education, healthcare, and religious upbringing. Joint legal custody is the most common arrangement: both parents share decision-making power and must consult each other on significant choices. Sole legal custody is typically reserved for cases involving domestic violence, substance abuse, or an inability to cooperate at all.
Physical custody, which the statutes call “residential arrangements,” determines where the child actually lives. Joint physical custody means the child splits meaningful time between both homes. Sole physical custody places the child primarily with one parent and gives the other a visitation schedule. Courts generally favor arrangements that keep both parents involved, but geography sometimes makes true joint physical custody impractical, and one household becomes the primary residence.
Split custody, where siblings live with different parents, is rare. Courts strongly prefer keeping siblings together, and the parent requesting a split carries a heavy burden to justify it.
Mediation Comes First
Mediation in Delaware Family Court is not optional. Both parents must sit down with a neutral mediator and attempt to reach their own agreement on custody and visitation before the case goes to a judge.2Delaware Courts. Court Proceedings in the Family Court – Section: Mediation
The mediator helps parents communicate and identify shared priorities but does not take sides or make decisions. If parents reach an agreement, it can be submitted to the court, and once signed by a judge or commissioner it becomes a binding order with the same enforceability as any other custody ruling.2Delaware Courts. Court Proceedings in the Family Court – Section: Mediation
Mediated agreements often hold up better over time because both parents shaped them. An order a judge imposes after a contested hearing frequently leaves one or both parents feeling they lost, which can fuel future conflict. Where there is a history of domestic violence or a severe power imbalance, the court may waive mediation or put safeguards in place.
Changing an Existing Custody Order
Modifying custody in Delaware is not as simple as showing circumstances have changed. The standard depends on how the original order was created and how long it has been in effect.3Delaware Courts. Custody Modification Overview
Consent Orders
If both parents originally agreed to the arrangement and the court entered it as a consent order, either parent can request a modification at any time. The court will grant the change if it finds the new arrangement is in the child’s best interests. There is no waiting period and no heightened burden of proof.3Delaware Courts. Custody Modification Overview
Court-Ordered Custody Within Two Years
If a judge issued the order after a contested hearing and fewer than two years have passed, the bar is much higher. The parent seeking modification must show that continuing to enforce the current order would endanger the child’s physical health or significantly impair their emotional development. This is intentionally difficult to prove. Courts want to give custody arrangements time to stabilize before revisiting them.3Delaware Courts. Custody Modification Overview
Court-Ordered Custody After Two Years
Once two years have passed since a court-ordered ruling, the standard loosens. The court weighs whether the benefits of changing the order outweigh any harm the change would cause, whether both parents have complied with the existing order, and the child’s best interests.3Delaware Courts. Custody Modification Overview
The practical takeaway: if you agreed to your arrangement and later realized it is not working, you have a clear path to ask for changes. If a judge decided custody after a trial, you face a much steeper climb, especially in the first two years.
Moving Away With Your Child
Relocating with a child is one of the fastest ways to end up back in court. Delaware has two overlapping sets of rules, and the requirements are strict.
Under Delaware’s version of the Model Relocation Act, a parent who wants to move the child’s primary residence must notify every other person with custody or visitation rights. That notice goes by first-class mail at least 60 days before the intended move. If the parent didn’t know the details in time to give 60 days’ notice and the move date cannot be extended, notice is required within 10 days of learning the necessary information.4Delaware General Assembly. Delaware Code Title 13 Chapter 7B – The Model Relocation Act
The notice must include a proposed revised visitation schedule and a warning that if the non-relocating parent does not object within 30 days, the move will be permitted by default. Failure to give proper notice can be used against the relocating parent in any later modification proceeding, and the court may assess attorney’s fees for the failure.4Delaware General Assembly. Delaware Code Title 13 Chapter 7B – The Model Relocation Act
When a relocation is contested during custody litigation and involves a move out of state or a move that materially changes the existing arrangement, the court applies a separate set of factors under Section 734 of Title 13. The relocating parent bears the burden of showing the move will enhance the child’s quality of life, whether through better education, improved living conditions, or stronger family support. The court also evaluates how realistic it is for the other parent to maintain a meaningful relationship with the child after the move.5FindLaw. Delaware Code 13-734 – Relocation
When the Other Parent Breaks the Order
A custody order is only worth something if it can be enforced. When one parent withholds the child during scheduled parenting time, refuses to return the child, or unilaterally makes major decisions that belong to both parents, the other parent can file a motion in Family Court seeking enforcement.
The most common enforcement mechanism is contempt of court. A parent found in contempt may face fines, community service, or makeup parenting time to compensate for missed visits. In serious or repeated cases, the court may modify the custody arrangement itself, sometimes shifting primary physical custody away from the parent who has been noncompliant. The goal is protecting the child’s stability and the integrity of the order, not punishment for its own sake.
Custodial interference, where a parent takes or conceals a child to deny the other parent their custody or visitation rights, can escalate beyond a civil matter. Depending on the severity, this conduct may be prosecuted as a criminal offense. Taking a child across state lines to evade a custody order is treated particularly seriously and can implicate federal law.
When Parents Live in Different States
When parents live in different states, the first question is which state’s court has authority to decide custody. Delaware, like every other state, follows the Uniform Child Custody Jurisdiction and Enforcement Act. Under the UCCJEA, the child’s “home state,” meaning the state where the child lived with a parent for at least six consecutive months before the case was filed, has priority.
If a child has lived in Delaware for at least six months, Delaware Family Court has jurisdiction regardless of where the other parent lives. If the child recently moved to Delaware from another state, the previous home state may retain jurisdiction until certain conditions are met. The UCCJEA also provides temporary emergency jurisdiction when a child is present in Delaware and has been abandoned or is at risk of abuse, even if Delaware is not the home state.
Once a Delaware court has properly entered a custody order, only Delaware can modify it as long as the child or at least one parent continues to live in the state. Another state cannot simply override a valid Delaware ruling, which prevents parents from filing competing cases in different states for tactical advantage.
Grandparent and Third-Party Visitation
Delaware law lets grandparents and certain other relatives petition for visitation, but the right is not automatic and the standard is demanding. The U.S. Supreme Court held in Troxel v. Granville that parents have a fundamental constitutional right to control who spends time with their children, and any state law overriding that right must include real safeguards.6Justia. Troxel v. Granville
Under Delaware’s third-party visitation statute, a grandparent, aunt, uncle, or adult sibling may file. Other adults can also petition if they can show they had a substantial and positive prior relationship with the child.7Delaware Code Online. Delaware Code Title 13 Chapter 24 Subchapter II – Third-Party Visitation Proceedings
Standing to file is just the first hurdle. Before granting visitation over a parent’s objection, the court must find that the visitation is in the child’s best interests and that the parent’s objection is unreasonable by clear and convincing evidence. The petitioner must also show, by a preponderance of the evidence, that the visitation will not substantially interfere with the parent-child relationship. Where a parent consents or is deceased, or where the child is dependent, neglected, or abused in a parent’s care, the standard is more straightforward.7Delaware Code Online. Delaware Code Title 13 Chapter 24 Subchapter II – Third-Party Visitation Proceedings
The clear and convincing evidence standard is a deliberate barrier. Grandparents who simply want more time with a grandchild will not succeed if a fit parent has said no.
Protections for Deployed Parents
Service members facing deployment worry that a temporary absence could permanently change custody. The federal Servicemembers Civil Relief Act applies to civil actions including custody cases, allowing a deployed parent to request a stay of proceedings when military service prevents them from appearing in court. The SCRA also bars courts from entering orders against a military parent absent due to service without adequate protections.
The SCRA does not dictate who gets custody during a deployment. That falls to state law. Delaware recognizes that custody changes made because of deployment should be temporary and should revert once the service member returns. A deployed parent may also be able to delegate their visitation time to a close family member, such as a grandparent, during the deployment. Military service alone should not be used as a factor against a parent in custody decisions.