How to File for Custody in Delaware: Forms, Service, and Hearing

To file for custody in Delaware, you submit a Petition for Custody to the Family Court in any county, along with two required supporting forms and a $90 filing fee. The court accepts filings in person at a Family Court Resource Center, by mail, or by email, but not by fax.1Delaware Courts. Where and How to File Petitions and Related Documents with the Family Court Before the case can reach a final hearing, both parents complete a parent education course and attend mediation.

Confirm Delaware Can Hear Your Case

Delaware Family Court can only decide custody if the state qualifies as your child’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act. That means the child has lived in Delaware with a parent for at least six consecutive months immediately before you file.2Delaware Code Online. Delaware Code Title 13 Chapter 19 Subchapter II – Uniform Child Custody Jurisdiction and Enforcement Act For a baby under six months old, Delaware counts as the home state if the child has lived here since birth.3Delaware Code Online. Delaware Code Title 13 Chapter 19 Subchapter I – General Provisions

If your child has not been in Delaware long enough, the court generally cannot issue a custody order. The one exception is emergency jurisdiction: if the child is physically in Delaware and has been abandoned or faces an immediate threat of abuse or mistreatment, a judge can enter a temporary order even without home-state status.2Delaware Code Online. Delaware Code Title 13 Chapter 19 Subchapter II – Uniform Child Custody Jurisdiction and Enforcement Act Those orders are temporary, and the case will move to the child’s actual home state if one exists.

Decide What You Are Asking For

Your petition has to state the arrangement you want. Delaware splits custody into two separate questions, and a judge can rule differently on each.

  • Legal custody is the authority to make major decisions about the child’s education, medical care, and religious upbringing. Sole legal custody puts that authority with one parent; joint legal custody shares it.
  • Residential arrangements (sometimes called physical custody) determine where the child lives day to day. Sole residential custody means the child lives primarily with one parent while the other has visitation. Joint residential custody splits time between both homes, though not necessarily evenly.

You might share legal custody equally while one parent serves as the primary residential parent. Delaware law prohibits judges from favoring a parent based on gender,4Justia. Delaware Code Title 13 Chapter 7 Subchapter II Section 722 – Best Interests of Child and both parents are considered joint natural custodians until a court says otherwise.5Delaware Courts. All Topics – Family Court Neither parent starts with an advantage.

Forms You Have to File

Three forms are required for Family Court to accept a custody filing:6Delaware Courts. Custody Forms – Family Court

  • Petition for Custody (Form 345). The main document. It identifies the parents and children and states the custody arrangement you want.
  • Custody Separate Statement (Form 346). A five-year residential history for the child, listing every address and everyone the child lived with. If the child is under five, the history runs back to birth.
  • Information Sheet (Form 240). Contact and identifying details for the parties.

Before your first mediation session or court appearance, you also file a Custody, Visitation, and Guardianship Disclosure Report (Form 364).6Delaware Courts. Custody Forms – Family Court Bring copies of any existing court orders involving the child, such as a protection-from-abuse order.

Depending on your situation, add:

  • Affidavit of Unknown Address (Form 241) if you don’t know where the other parent lives.
  • Waiver of Rights Under the Servicemembers’ Civil Relief Act (Form 420) if the other parent is on active military duty.
  • Consent Order (Form 349) if both parents already agree on the arrangement and want a judge to sign off without a contested hearing.6Delaware Courts. Custody Forms – Family Court

All forms are available on the Delaware Family Court website or at the clerk’s office.

If You Were Never Married, Establish Paternity First

If the parents were never married and paternity has not been legally established, the father cannot file for custody until that step is complete. Either parent can file a Petition for Paternity Adjudication, and the court may order genetic testing.5Delaware Courts. All Topics – Family Court Once paternity is established, both parents stand on equal footing and either can file for custody. Handling paternity first prevents a custody petition from being rejected on a technicality.

Where and How to File, and What It Costs

You can file at the Family Court Resource Center in any county. If you file in the wrong county, the paperwork will be transferred to the county with jurisdiction. Filing by mail or email is also allowed; the court does not accept faxed filings.1Delaware Courts. Where and How to File Petitions and Related Documents with the Family Court Submit an original and one copy of each document, and keep a copy for yourself.

The filing fee for a civil custody petition is $90, and you may also owe a $10 court security fee.7Delaware Courts. Schedule of Assessed Costs If you cannot afford the fees, file an Application and Affidavit to Proceed In Forma Pauperis, which requires you to attest under oath that you lack sufficient funds or assets to pay.8Delaware Courts. Application and Affidavit to Proceed In Forma Pauperis

Serving the Other Parent

Once your petition is filed, the other parent must be formally served with a copy of the petition and a summons. Without proper service, the case cannot move forward.

Delaware allows service through the sheriff’s office or by certified mail with a return receipt. You can also use a private process server, but you must first file a Notice of Special Process Server (Form 593), and the server must be someone approved by the Family Court’s Chief Judge.9Delaware Courts. Information on the Use of Special Process Servers The server cannot be a party to the case, a relative of either parent, or anyone with a financial interest in the outcome. You pay the process server directly; the court does not cover that cost.

Parent Education and Mediation Before Any Hearing

Both parents have to complete an approved parent education seminar before the case can reach a final hearing. The course covers how separation and divorce affect children and how to reduce conflict.10Delaware Courts. Approved Education Seminars for Separating and/or Divorcing Parents You enroll yourself, and the court needs proof of completion before the case moves ahead.11Delaware Courts. Parent Education Programs Sign up early. If you have not completed the course by mediation, you can slow down your own case.

Delaware Family Court also requires mediation. A court-employed mediator meets with both parents and works toward a written agreement on custody and visitation.5Delaware Courts. All Topics – Family Court If you reach an agreement, a judge signs it into an enforceable order. Mediation discussions are confidential and are not shared with the judge who hears the case if mediation fails, so you can speak candidly.

How a Judge Decides If You Cannot Agree

When mediation does not resolve the case, a judge decides custody based on the child’s best interests. Delaware law lists eight factors the court must weigh:4Justia. Delaware Code Title 13 Chapter 7 Subchapter II Section 722 – Best Interests of Child

  • Each parent’s wishes about the arrangement.
  • The child’s wishes, if the child is old enough and mature enough for the judge to weigh them.
  • The child’s relationships with each parent, siblings, grandparents, and anyone else who plays a significant role in their life.
  • How well the child is adjusted to home, school, and community.
  • The mental and physical health of everyone involved.
  • Whether each parent has followed prior court orders and fulfilled parental responsibilities.
  • Any evidence of domestic violence involving either parent.
  • The criminal record of either parent or any other person living in the household, including guilty and no-contest pleas.

No single factor automatically decides the outcome. Judges weigh the whole picture, though domestic violence and criminal history tend to carry heavy weight.

What Happens at a Contested Hearing

At a contested hearing, both parents present evidence and testimony. Each side can call witnesses, introduce documents, and cross-examine the other parent. If you represent yourself, the judge will offer some procedural guidance, but you are still responsible for presenting your case.

Either parent can file a motion asking the court to appoint a guardian ad litem, an independent person (often an attorney) who investigates and advocates for the child’s interests.12Delaware Courts. Motion for Appointment of a Guardian Ad Litem for a Child Litigant The other parent has 10 days to respond. After the evidence is in, the judge issues an order covering legal custody, residential arrangements, and a visitation schedule. The order is legally binding, and violating it can result in contempt proceedings.

Modifying an Order or Moving Later

Filing for custody is a separate step from changing an existing order or relocating with your child. Once an order is in place, modification standards vary with the type of order and how much time has passed, and within two years of a contested order the bar is intentionally high. Moving with your child for 60 days or more triggers its own set of relocation factors the court must weigh before approving the move.13Delaware Code Online. Delaware Code Title 13 Chapter 7 Subchapter II – Parents and Children If either situation applies to you, plan on a separate petition rather than assuming the initial custody case handles it.