Legal Information: Delaware

Custody

Updated: 
November 29, 2021

What 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.1

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.2

1 13 Del. C. § 727
2 13 Del. C. § 722

What 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.1

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.2

1 13 Del. C. § 728
2 13 Del. C. § 728

What 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.

What options are there for residency?

What 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.1

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.1

1 13 Del. C. § 728

What is the 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.1

1 13 Del. C. § 728

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