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Legal Information: Delaware


December 8, 2020

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 options are there for residency?

What 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.1

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.

1 13 Del. Code § 701.

Should 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.