Child Custody and Visitation Laws in Delaware

Learn about legal custody and residential responsibility in Delaware.

Both Parents Are Natural Custodians

Delaware law recognizes that both parents are natural custodians of their children, which means the law doesn’t favor one parent over the other. When a parent files a petition for custody, the court immediately restricts either parent from removing the child from the state and also orders both parents to attend a mandatory parenting education class.

What Custody Options Are Available in Delaware?

Courts in Delaware divide custody into two components: legal custody and residential placement. Legal custody refers to which parent will have decision-making authority over the child’s medical, educational, or general welfare. Because the law views parents as equals, it’s standard for parents to share legal custody, which means each parent has the right to express an opinion on matters that significantly affect the child’s well-being.

Judges will not restrict a parent’s joint legal custody unless there’s evidence that demonstrates contact with the parent will endanger the child’s health or welfare. The court may allocate specific responsibilities to each parent. For example, one parent may be responsible for decisions relating to the child’s education while the other has authority over the child’s religion.

Residential placement refers to a parent’s time with the children. The court will only grant one parent the right to be the custodial parent in primary residency. The judge will develop a contact schedule for the noncustodial parent to exercise regular visitation with the child.

Regardless of the title in a custody order, both parents have the right to access the child’s medical, school, dental, or other records.

Best Interest Analysis

Although the law requires Delaware judges to award both parents sole legal custody, it’s not always cut and dry. Child custody is a highly emotional and personal issue, but the court has a vested interest in protecting its children, which is why judges will evaluate a series of factors in every custody case, including:

  • the child’s opinion
  • the interaction and relationship of the child with each parent, grandparents, siblings, and anyone else living in the same house
  • the parent’s wishes
  • the child’s adjustment to home, school, and community
  • the mental and physical health of everyone involved in the custody case
  • evidence of domestic violence
  • each parent’s past and present compliance with their rights and responsibilities to their child, and
  • the criminal history of any party living in the child’s home.

The Custody Process

After both parents complete the mandatory parenting class, the court usually refers the case to mediation—a confidential settlement process. The goal of mediation is to provide a safe space for parents to feel comfortable openly discussing their custody concerns. During the process, the mediator will help the parents facilitate the discussion and if they agree, draft a consent order (agreement) to present to the judge.

If parents agree on some issues, but still have difficulty creating a contact schedule (visitation) for the noncustodial parent, the law authorizes the mediator to develop a temporary plan that will remain in place until the court hearing. If mediation fails, the parties will attend a conference with the judge later.

Temporary Orders

Unlike most states, where the court intends for its orders to be permanent, Delaware law allows the court to enter a temporary order of custody, valid for up to six months, which gives parents the ability to demonstrate their ability to cooperate with the arrangement. When it expires, the court may choose to enter the order as permanent or create a new agreement.

Don’t let the fact that it’s a temporary order fool you: parents must follow the terms of the agreement, or risk severe penalties from the judge.

What Is a Contact Schedule?

A contact schedule is a fancy way of saying visitation. The court’s goal is for the child to spend as much time as possible with both parents, so judges encourage parents to create a schedule that considers the following:

  • each parent’s work schedule
  • the child’s school schedule, and
  • extra-curricular activities.

Typical schedules include the child staying in the noncustodial parent’s home for overnights on alternating weeks, holidays, and school vacations. Some plans allocate time for “mid-week” visits as well, which is where the child will have dinner with the noncustodial parent but return to the residential parent by a specific time.

Courts are reluctant to interfere with a parent’s time with the child, but if there’s a concern about the child’s safety or well-being, the court may order supervised contact.

There’s no question that a child will benefit from interaction and a meaningful relationship with both parents. If there’s a dispute, the court expects the adults to work it out without involving the court. You can locate a professional, or either parent can ask the judge for court-ordered counseling.

Modifying Your Parenting Plan in Delaware

While most court orders are meant to be permanent, it’s common for a child to grow out of a contact schedule, or for the noncustodial parent to desire more time with the child as time goes on. A parent who wants to modify the arrangement must file a petition asking the court to intervene.

The court will only change the order if it’s in the child’s best interest. To decide whether to modify an existing order, the judge will consider:

  • whether the modification will cause harm to the child, and if so, if the benefits outweigh the harm, and
  • whether child’s parents historically complied with the existing order.

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