A Delaware judge making custody decisions in a divorce case considers the best interests of the children to be the primary concern. Neither parent begins with any greater right to custody than the other; instead, the judge begins with the assumption that it is in a child’s best interests to maintain close relationships with both parents, unless contact with one parent would endanger the child's physical health or emotional development. In making custody decisions, judges can consider any factor relevant to parenting, using as guidance a number of factors set out in the state’s laws.
In assessing whether a custody arrangement protects a child’s health and safety, a court may consider evidence of domestic violence; criminal history of a parent or a resident of the parent’s household; and the mental and physical health of the parents, the child, and any other individual who may be involved in the custody arrangement. The court will consider only those aspects of a parent’s conduct that have a direct affect on the parent’s relationship with the child—so, for example, the fact that a parent lost a job wouldn’t necessarily count against the parent in a custody dispute, because it wouldn’t have a negative impact on the parent-child relationship. A judge who determines, after a hearing, that contact with a parent poses a danger to a child’s physical or emotional health may deny custody and visitation to that parent, or may require that visitation be supervised. A judge who denied visitation or requires supervision must state the facts and conclusions supporting the decision.
A court will consider each parent’s history of fulfilling parental roles and responsibilities. Courts favor arrangements that maintain the ongoing stability of a child’s home, school, and community life, and also prefer that children be encouraged to continue significant personal relationships, such as those with siblings, grandparents, or other people who are important to the child. A judge will consider the wishes of both parents regarding custody, and will also allow a child to state a preference if the child is old enough and mature enough to make an intelligent decision.
Legal custody refers to a parent’s authority to participate in significant or long-term decisions regarding a child’s health, education, religious upbringing, and general welfare. Physical custody refers to the time that a child lives with a parent or is under the parent’s care and supervision. A court awarding joint legal custody will not necessarily also award joint physical custody (or vice versa), nor does joint physical custody necessarily require an equal division of time between parents. Many different parenting schedules may be appropriate depending on the individual circumstances of a case.
Before making a permanent custody decision, a Delaware court has the authority to make a temporary order for a period of not more than six months in order to allow the parents to demonstrate an ability and willingness to cooperate with a joint custody arrangement. The court may also order counseling for the parents, and for the child as well if appropriate, in order to assist parents in developing parenting and co-parenting skills. Custody orders must include a schedule indicating when the child is to have contact with each parent.