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Know the Laws: Delaware

UPDATED April 12, 2017

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WomensLaw.org strongly recommends that you get in touch with a lawyer for more information on custody. Go to the DE Finding a Lawyer page for listings of local services.  Also, you can check out the Delaware State Courts website for additional information about custody, visitation, and divorce. 

Who can get custody

back to topWho can get custody or visitation? Can relatives or other adults get visitation?

Generally, at least one of the child’s parents is entitled to custody and/or visitation.  Both parents have the right to request visitation, and judges try to grant this, unless it would harm the child's physical health or emotional development.*

If a judge determines that the child is neglected, or if it is in the child's best interest, then s/he may grant guardianship to another person or to the Department of Services for Children, Youth and their Families.*1

In addition, a non-parent, usually a relative of the child, can ask to be appointed as a legal guardian and can seek custody as well if the child is being neglected.*1  Even if a guardian is appointed, the parents still have the right to have contact with the child and also have financial responsibility for the child.*2  The Department of Services for Children, Youth and their Families can also seek full custody if the child is being abused and is in danger.*3

Also, any other adult can request visitation so long as s/he meets the following requirements:

  • s/he has a substantial and positive prior relationship with the child; or
  • s/he is a grandparent, aunt, uncle or adult sibling of the child.*4

Through a guardian ad litem, children can also request visitation with a sibling (including half-siblings) or with other adults.  To get visitation with an adult, the following must apply:

  • The adult consents to visitation with the child and;
  • The adult:
    • Has a substantial and positive prior relationship with the child; or
    • Is a grandparent, aunt, uncle or adult sibling of the child.*4

A judge will decide all of this based on what s/he thinks is in the best interests of the child.

* 13 Del. C. § 728
*1 13 Del. C. § 2330
*2 13 Del. C. § 2331
*3 13 Del. C. § 2512
*4 13 Del. C. § 2410

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back to topCan a parent who committed violence get custody or visitation?

A parent who committed domestic violence against the child, the other parent, or another member of the household generally will not be awarded sole or joint custody unless they have not committed any further acts of violence. In addition, the parent will have to prove that they have successfully completed a counseling program or that it is in the best interest of the child that they be awarded custody.*

* 13 Del. C. § 705A

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back to topI am the child's relative. Can I get custody of the child?

A non-parent can ask to be appointed as a legal guardian if the child is being neglected.  The court must find that it is in the best interest of the child that he/she should have a guardian appointed.*   Being legal guardian is similar to having custody, but is not exactly the same thing since the parents still have some rights and responsibilities for the child.

A blood relative, foster parent or parent may also request permanent guardianship over a child in certain situations.**  This is more like establishing custody, but is legally  different. 

"Custody" in Delaware is for parents.  Parents include birth parents, adoptive parents, and "de facto" parents, which means any person who has acted like a parent to the child, with the consent of the child's actual parents.***

* 13 Del. C. § 2330
** 13 Del. C. § 2353
*** 13 Del. C. § 8-201

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