Many separating or divorcing parents are able to work out their own custody agreements. When parents can't agree, a judge will decide legal custody and residential placement at trial. However, sometimes a child wants a say in a custody arrangement. Delaware judges will consider a child's wishes as long as the child is of a sufficient age and maturity to express a parental preference.
This article provides an overview Delaware custody cases. If you have additional questions after reading this article, contact a local family law attorney for advice.
Both parents have equal rights over their children in Delaware and the law doesn't favor one parent over the other. Delaware custody laws recognize both legal custody and residential placement (sometimes called "physical custody"). A judge will base legal custody and residential placement decisions on the child's best interests.
A parent with legal custody can make major decisions regarding the child's medical, educational, religious, or other needs. In most cases, a judge will award parents "shared" or "joint legal custody." Joint legal custody gives both parents an equal role in the upbringing of his or her child.
In cases where a child's well-being or safety is at issue, a judge may award one parent sole decision-making authority over a child. Alternatively, different responsibilities can be allocated to each parent. For example, one parent may be responsible for educational and medical decisions involving the child, while the other parent has authority over the child's religious upbringing.
A parent who doesn't have legal custody still has a right to access the child's medical, school, dental, or other records upon request.
"Residential placement" refers to each parent's time with his or her child. The parent with primary residential placement lives with the child, also called the "residential" or "custodial parent". The other parent is the "noncustodial parent". Noncustodial parents are still entitled to regular visitation and contact with the child. Even in situations where parents have nearly equal time with the child, a court will only grant name one person as the "custodial parent". Residential parents have the final say in decisions involving the child when the parents can't agree.
In Delaware, a "contact schedule" is a parent's visitation schedule. In most cases, it's in a child's best interests to spend the maximum time possible with each parent. With than in mind, a judge consider the following when creating a visitation schedule:
A typical contact schedule might involve the child staying in the noncustodial parent's home for overnights every other weekend, on holidays, and during school vacations. Most noncustodial parents are allowed "mid-week" visits as well, which is where the child will have dinner with the noncustodial parent but return to the residential parent before bedtime.
When parents can't reach an agreement on custody, a judge will tailor a custody arrangement to a child's best interests. To determine the arrangement best suited to a child's needs, a Delaware judge will consider a number of factors, including:
In Delaware, a judge will weigh child's preference in accordance with the child's intelligence, age, and maturity. A child's preference is one of several factors a judge will consider when deciding a child's best interests. For example, a court won't give much weight to a very young child's preference. However, a mature teenager's preference could impact the outcome of a custody case.
Delaware custody laws don't prescribe a certain age where a child's preference matters. Instead, a judge will weigh a child's preference according to the unique circumstances of your case. Some Delaware judges have interviewed children as young as six about their desires regarding custody. In other Delaware cases, judges have refused to give any weight to the preference of a child under 10.
In any case, a judge isn't obligated to follow whatever the child wants. 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. However, a 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.
Delaware judges prefer to avoid having a child testify in court whenever possible. A judge can still hear a child's wishes on custody outside of a courtroom. Most often, the judge will interview the child in his or her chambers. Attorneys can be present for the interview, but not the child's parents. Often a judge will have a court reporter record the conversation so that it's part of the official record of the case. See 13 Del. Code § 724 (2020).
Alternatively, a professional, such as a custody evaluator or a guardian ad litem, can interview the child outside of court regarding the child's preference and family circumstances. 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.
A child's needs may change over time and in some cases, a change to custody is necessary. Either parent can petition the court to modify custody. The parent seeking a custody change will have to prove that a material change in circumstances has occurred and that a custody modification would serve the child's best interests. Some situations that might justify a change in custody are if the custodial parent has a major medical crisis or takes a job that requires an international relocation and frequent travel.
If you still have additional questions about the effect of children's custodial preferences, contact a Delaware family law attorney for help.