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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. 

General information

back to topWhat is custody?

Custody is the legal responsibility for the care and control of your child (under 18).

In Delaware, when a judge gives you a custody order, it will address two things: legal custody and residency.

Legal custody is the right to make major decisions about your child. If you are given legal custody of your child, you have the right to make the following types of decisions:

  • where your child goes to school
  • whether your child gets a particular type of medical care
  • what kind of religious training your child receives

Residency is the actual physical care and supervision of your child (under 18). If you are granted residency, your child may live with you on a day-to-day basis.*

Judges make decisions about custody according to what is in “the best interest of the child.” This means that they will look at several factors when deciding who should be granted custody to make sure that the child is living in a safe and caring household.**

* 13 Del. C. § 727
** 13 Del. C. § 722

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back to topWhat options are there for residency?

In Delaware, a judge may give primary residency to one parent and may grant visitation rights to the other parent. This means that the child would live with one of the parents full-time and be able to visit with the other parent. Judges make residency decisions based on what s/he thinks is in the best interest of the child.*

 * 13 Del. C. § 728

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back to topWhat are some of the advantages and disadvantages of getting a custody order?

There are many reasons people choose not to get a custody order from a judge. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.

However, getting a custody order from a judge can give you certain legal rights. Getting a custody order can give you:

  • The right to make decisions about your child
  • The right to residency (to have your child live with you)

Without a custody order, both parents have equal rights and responsibilities for the child or children.*

Some people think they should file for custody so they can get child support.  While custody and child support are related, you do not necessarily need a custody order to get child support.

Also, a custody order will not automatically give you child support. See Can I get support for my children and myself? for more details. As with all custody issues, we recommend that you talk to a lawyer about this.

* 13 Del. Code § 701.

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may want to ask that the visits be supervised.

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the great majority of cases, supervised visits are only a temporary.  Although the exact visitation order will vary, the judge might order a professional to observe the parent on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the parent ends up with more frequent and/ or longer visits than s/he had before you went into court. The other parent may even end up with joint custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to DE Finding a Lawyer to seek out legal advice.

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Definitions

back to topWhat options are there for legal custody?

There are two types of legal custody: sole legal custody and joint legal custody.

If you have sole legal custody, you have the right to make all of the decisions affecting your child’s life.

If you have joint legal custody, you share the right to make decisions about your child’s life with the child’s other parent.

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back to topWhat is joint custody?

In Delaware, a judge may award both parents joint legal custody. This means that both parents have equal rights and responsibilities for major decisions concerning the child, including:

  • the education of the child,
  • health care, and
  • religious training

These rights cannot be restricted unless the judge finds that the child’s contact with the parent puts the child’s health or emotional development in danger.*

The judge may choose one parent to have sole power to make certain decisions while both parents have equal rights and responsibilities for other decisions.

Even though both parents may share legal custody, only one parent will be awarded primary residency. This means that the child will live with one parent full-time while the other parent may be granted the right to visit the child.**

 * 13 Del. C. § 728
 ** 13 Del. C. § 728

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back to topWhat is visitation?

A judge may grant visitation rights to the parent that does not have primary residency. This means that if your child does not live with you full-time, you may still be given the right to visit your child.  Generally, your custody order will include a schedule for the dates and times when you will be able to visit your child.*

Judges try to grant visitation to the parent that does not have primary residencey.  Judges are supposed to try to create an arrangement where both parents have meaningful contact with the child.  A Judge can restrict or eliminate contact with one parent if s/he finds that contact with that parent would endanger the child's physical health or significantly impair the child's emotional development.*

 * 13 Del. C. § 728

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back to topIs there any difference between custody and visitation?

Yes. A custody order is about the right to make decisions about the child’s life or physically have the child. Visitation rights are given to the parent who the child does not live with full time. Visitation allows that parent to visit the child and to be told about decisions made concerning the child. This parent will have scheduled times during which he or she can visit the child.*

 * 13 Del. C. § 728

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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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How the custody process works

back to topHow will a judge make a decision about custody?

In awarding custody of a child, the judge will look at many factors to decide what is in the best interest of the child. These factors include:

  • What custody and living arrangements the child’s parent or parents want;
  • What custody and living arrangements the child wants;
  • The interaction and relationship the child has with his or her parents, grandparents, siblings, the husband or wife of either parent, any other residents of the household or persons who may significantly affect the child's best interest;
  • The child's adjustment to his or her home, school and community;
  • The mental and physical health of all individuals involved;
  • Past and present compliance by both parents with their rights and responsibilities to support and care to their child;
  • Evidence of domestic violence;
  • The criminal history of either parent and anyone they live with, including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.*

 * 13 Del. C. § 722

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back to topIf I have left the home where the abuser and my children currently live, will this hurt my chances of gaining custody?

If you flee from domestic violence and temporarily leave your children behind, as long as the children are not left in immediate danger of serious physical injury, a judge is not supposed to consider this evidence of abandonment in any child custody or visitation proceeding.*  If possible, you may want to collect any evidence of abuse before you leave so that you will be able to prove to the judge that you were fleeing domestic violence for your safety.

As with all custody issues, we recommend that you talk to a lawyer about this.

* 13 Del. C. § 704A

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back to topDo I need a lawyer?

You do not necessarily need a lawyer to file for custody. However, you should consider hiring a lawyer because it may be difficult for you to file a proper petition without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well. To find a lawyer or legal aid program in your area, please visit the DE Finding a Lawyer page under the Where to Find Help tab at the top of this page.

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back to topIn which state do I file for custody?

Delaware, like many states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which we explain here.

Under the UCCJEA, you can only file for custody in the "home state" of the child. (There are exceptions to the "home state" rule -- see below.)

The "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than six months old, the "home state" is the state where the child has lived from birth.

If you and your child recently moved to a new state, you cannot file for custody in that new state until you have lived there for the amount of time that the law describes. Until then, the other parent can start a custody action in the state that your children most recently lived in for at least six months.

Example: If a family lives in state A for one year, state A is the home state. If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state.* As with all custody issues, we recommend that you talk to a lawyer about this.

* 13 Del. C. § 1920

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back to topAre there exceptions to the “home state” rule?

Yes. In some cases, you can file for custody in a state where the children and at least one parent have "significant connections." Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. To find help through a lawyer or domestic violence advocaite, please click on the DE Where to Find Help tab at the top of this page.

You can also file for temporary emergency custody in a state other than the home state if the child is present in the state AND:

  • the child has been abandoned or;
  • it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.*

* 13 Del C. § 1920; 13 Del. C. § 1923

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back to topCan I change the state where the case is being heard?

In some cases, you can file for custody in a state where the children and at least one parent have "significant connections."  Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.  For more informaiton about changing a final custody order, go to our Changing a final custody order section on our general custody page.

This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of local resources, please see our DE Finding a Lawyer page under the Where to Find Help tab on the top of this page.

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back to topWhat are the steps for filing for custody?

It depends on your situation. To find out what the process will be like for your specific situation, please consult a lawyer in your state. To find a lawyer or legal aid program in your area, please visit the DE Finding a Lawyer page under the Where to Find Help tab at the top of this page.

Generally, if the parents are married, one or both of the parents usually files for custody as part of a divorce action. If the parents are already divorced, the parent who does not have custody can file a petition for a change of custody in the county where the divorce was granted. If the parents were never married, either parent can file for custody in the county where the child has been living for at least six months.

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back to topIf I am getting divorced, can I take my kids out of the state?

It depends.  Once a petition for divorce or annulment has been filed, a restriction called a “preliminary injunction” is put in place against both parents that prohibits them from taking any children who live in Delaware out of the state without the prior written consent of your spouse or the permission of the court.  So if you want to take your child out of the state, even for vacation, you should ask the other parent for written permission or the judge for permission first.*

Note: The preliminary injunction applies to the petitioner as soon as s/he files the petition and against the respondent as soon as s/he is served with a copy of the petition.

* 13 Del.C. § 1509(a)(3)

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back to topCan I get support for my children and myself?

Both parents have to support a child until the child is 18 years of age or until they graduate high school.* A “support petition” asking a judge to order a parent to pay child support can be filed in the Family Court. If you are divorced, your spouse may also be required to pay you alimony if you relied on him/her for financial support. You may have to go to mediation to try and settle the amount of child support and/or alimony you and your child can receive. This may be true unless one of the parties has committed an act of domestic violence against another party, or if they have been ordered to have no contact with the other party.**

* 13 Del. C. § 501
** 13 Del. C. § 1512

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back to topWhat is mediation? Will I have to go through mediation?

Mediation is a way of resolving a legal dispute. During mediation, a neutral third party listens to you and the person you are having a conflict with and tries to help you reach a solution before going before a judge.  Mediation is not ordered in any child custody, visitation or support case where one of the parties has committed an act of domestic violence against another party, or where one party has been ordered to have no contact with the other party.*  If there has been no domestic violence, then Delaware courts usually make the parties go to mediation in all custody, visitation, and support cases.

* 13 Del. C. § 711A

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After a custody order is in place

back to topIf a custody/visitation order is in place, how can I get it changed?

There are different standards for modifying custody/visitation orders, depending on many factors, as we explain below.

1) An order concerning visitation can be modified at any time as long as it is in the best interests of the child and consistent with the child's best interests and maturity.*  Any visitation schedule made in Delaware is supposed to be designed to allow and encourage the child to have frequent and meaningful contact with both parents unless the judge finds (after a hearing) that contact with one parent would endanger the child's physical health or significantly harm his/her emotional development.**

2) An order regarding custody can be modified at any time according to the best interests of the child if it meets one of these requirements:

  • it was issued by consent of all parties;
  • it is an interim order; or
  • it is a written agreement between the parties concerning the legal custody of a child or his/her residence.***

3) An order concerning the legal custody of a child or his/her primary residence that was issued by the judge after a full hearing (trial) on the merits may be modified only as follows:

  • If the application for modification is filed within 2 years after the court's most recent order concerning these matters, the judge will not modify the order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly harm his/her emotional development.
  • If the application for modification is filed more than 2 years after the judge's most recent order concerning these matters, the judge can modify its prior order after considering:
    • whether or not any harm is likely to come to the child if the order is changed and, if so, whether that harm is likely to be outweighed by the advantages to the child of the modification requested;
    • whether or not each parent has obeyed the current order, including providing to the other parent (if requested) information concerning the child's progress in school, medical treatment, significant developments in the child's life, school activities and conferences, special religious events and other activities in which both parents may wish to participate' and allowing the child to speak to the other parent by phone, mail, etc.;
    • if, during the current order, the parent was punished by the court for disobeying the order; and
    • if changing the custody order is in the best interests of the child.****

* 13 Del. C. §§ 729(a); 728(a)
** 13 Del. C. § 728(a)
*** 13 Del. C. § 729(b)
**** 13 Del. C. §§ 729(c); 727(a)

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back to topIf there is a custody order in place, can I take my kids out of the state?

You should check your custody order to see if there are limits on taking your child out of state for a vacation before planning a trip. You should also check with a lawyer in your state who will be able to inform you of the specific rules on custody and vacation in Delaware.

If you are in the middle of custody hearings, you may not leave the jurisdiction with your child unless you get written consent from the other parent (or whoever else is asking for custody) or if you ask the court for permission first.*

* 13 Del. C. § 721

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back to topCan a parent who does not have custody have access to the child’s records?

A parent that does not have custody can receive records or information about their child on topics including their education, medical treatment, school activities, etc.*

* 13 Del. C. § 727

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