Determining Custody and Visitation in Delaware
Married or Unmarried Parents
Family courts in Delaware do not discriminate against a parent’s gender for child custody purposes. When responding to a parent’s request for child custody in Delaware, the court will determine custody based on the best interests of the child, in addition to several additional factors. A court in Delaware will determine physical and legal child custody based on the best interests of the child. Factors included in best interests of the child are:
- The child’s wishes
- Each parent’s wishes
- The child’s adjustment to home, school, and community life
- Any evidence of domestic violence
- The mental and physical health of all involved parties
- The child’s relationship with his/her parents, siblings, and extended family members
- Any criminal history related to either parent
Under Delaware law, parents are joint natural custodians of their children. When parents live separate and apart, either or both parents may file a petition in Family Court asking that the court award custody to him/her. When a Petition for Custody is filed in Family Court, a Preliminary Injunction is served immediately on both parties prohibiting removing the child from the State of Delaware without the permission of the other parent or the Court; and requiring both parents and children are ordered to take a “Parenting Education Class”.
A court in Delaware prefers a joint custody arrangement where both parents have equal access to the child. However, a Delaware court will grant sole custody if it determines that contact with a parent will endanger the child’s physical or emotional well-being.
Whether parents have joint legal custody or one parent has sole legal custody of a child, each parent has the right to receive, when requested from the other parent, all material information concerning the child’s progress in school, medical treatment, school activities and conferences, religious events, and other activities in which the child participates. Both parents have a right to attend all these activities. Both parents also have the right to access to the child by phone and mail.
An order of child custody in Delaware may include:
- A temporary joint or sole custody order for up to 6 months to give the parents the chance to demonstrate their ability to cooperate with the custodial order. After the expiration of the temporary order, the court can decide to make the temporary order permanent.
- Court-ordered counseling for the parents and the children.
- A court order shall include a schedule, including when each parent will have contact with the child.
Military and Child Custody
Delaware considers a custody order by a person in the military as a temporary order until the military service member returns from active duty.
Civil Law Custody Rights
Under Delaware’s new 2012 law, a civil union is a legally recognized relationship of two people. A couple in a civil union will receive all the legal benefits and protections, and be subject to the same legal responsibilities, as are provided under Delaware law to married couples. However, a civil union is not a marriage. Family law rights and responsibilities include: a) access to step-parent and joint adoption on the same terms and using the same procedures as married couples; and, b) legal presumption that both partners are parents of children born into the civil union.
Modification of Custody Orders
After an order for custody has been entered, a party who wants to modify the current child custody arrangement in Delaware should file a petition with the family court. A Delaware court will modify child custody if it is in the best interests of the child. You may only file to modify or change custody if a custody order has already been issued by the Court. In determining whether to agree to a custody modification, a Delaware court will ponder:
- Whether there will be harm caused by the custody modification and whether any harm caused by a modification will be outweighed by the advantages; and
- Whether the child’s parents have complied with the current custody and visitation order.
Parent Visitation
In Delaware, a visitation schedule is usually determined along with a custody decision. When parents live separate and apart, either or both parents may file a Petition for Parental Visitation in Family Court asking that the court award custody to him/her along with a specific contact and visitation schedule. After an order for visitation has been entered, either parent may file a Petition for Visitation Modification.
Registration of Out of State Custody Orders
If you register a foreign or out of state custody in Delaware, the Family Court will recognize and enforce a custody order from another state. Registration does not necessarily mean that the Family Court has jurisdiction over your case. Jurisdiction may remain where the Order was entered. Therefore, Delaware may not be able change the Order. Delaware can, however, hold a hearing regarding the enforcement of the Order, and if there is no opposition by either party to the registration of the order, the order will remain registered in Delaware.
Enforcement of Court Orders.
When a party to a family court order fails to follow its terms, one can file a petition for enforcement of a child-custody determination of the order and secure the other party’s compliance. In Delaware, the Court accords full faith and credit to an order issued by another State and enforces a child-custody determination by a court of another State unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so.
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