Can Children Express Preference in Delaware Custody Proceedings?

Learn how a child's preference impacts custody decisions in Delaware.

Often, separating parents will agree on a custody schedule for their minor children. Sometimes, however, a child will want a say in the custodial arrangement as well. In many states, judges will consider a child’s preference when deciding custody.

This article will explain how a child’s preference affects custody in Delaware. If you have additional questions about the effect of a child’s custodial preference in Delaware after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Delaware

When parents don’t agree on custody, the court will make the custody decision based on what is in the child’s best interest. In determining the child’s best interest, Delaware judges must consider a number of factors, including all of the following:

  • each parent’s wishes regarding custody and residential arrangements
  • the child’s relationship with his or her parents, grandparents, siblings, and other people living in either parent’s household
  • the child’s adjustment to home, school, and community
  • the parent’s mental and physical health
  • the child’s mental and physical health
  • each parent’s history regarding responsibility for the child
  • either parent’s history of domestic violence
  • either parent’s criminal history, or the criminal history of any other household member, and
  • the child’s wishes as to his or her custody and residential arrangements.

Delaware judges won’t automatically favor one parent over the other based on the gender of the parent or child. To read more information about custody decisions in Delaware, see Child Custody in Delaware: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Delaware, the judge weighs the child’s preference regarding custody according to the child’s intelligence and maturity. When a child is very young or is immature, the court won’t give his or her preference a lot of weight. Also, if a child is unable to give a good reason for his or her preference, the judge won’t consider the opinion heavily.

When a child is mature enough to have an opinion on which parent should have primary custody, the court has to take that preference into account. The judge isn’t obligated to follow whatever the child wants, but the judge can’t ignore the child’s desires either. If all other factors are equal, then the judge should follow the child’s preference. If, however, there is evidence that it’s not in the child’s best interests to live with the selected parent, the court will override the child’s preference.

When making the custody decision, the judge has to also determine whether the child’s preference is an intelligent decision, or whether the child is making his or her choice based on some temporary dissatisfaction with a parent or a passing whim. Delaware courts understand that a child’s development can be harmed by frequent custody changes, so judges are careful to ensure that a child’s preference is a permanent choice.

In Delaware, courts can award custody to a person other than the child’s natural parent if it’s in the child’s best interests. In one case, the court agreed with a 15 year old girl’s preference to live with her grandmother rather than her natural father.

Although Delaware law doesn’t have a specific age when a child’s preference can be considered, judges have interviewed children as young as six about their desires regarding custody. Other judges have also said that children aged six are too young to give their preference much weight, regardless of how mature they may be.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Delaware, children don’t testify in court regarding their custodial preferences. Most often, the judge will interview the child in his or her chambers. The parent’s attorneys can be present for the interview, but the court won’t force the child to state his or her custodial preference in front of the parents themselves. If either parent wants, the judge will have a court reporter record the conversation so that it’s part of the official record of the case.

The judge may also have a professional, such as a custody evaluator, testify about the child’s preference. The judge may have that person submit their findings in writing, and then give that report to the parents and their attorneys. Both parents have the right to have their attorneys question the professional in court.

If you have additional questions about the effect of children’s custodial preferences, contact a Delaware family law attorney for help.

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