Legal Information: Delaware

Custody

Updated: 
November 29, 2021

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.

What 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 Places that 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.

Will I have to go through mediation?

Mediation is a way of resolving a legal dispute where a neutral third party (mediator) listens to both parties 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.1 If there has been no domestic violence, then Delaware courts usually make the parties go to mediation in all custody, visitation, and support cases.

1 13 Del. C. § 711A

Do 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 Places that Help tab at the top of this page.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

In 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.1 As with all custody issues, we recommend that you talk to a lawyer about this.

1 13 Del. C. § 1920

Are 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 Places that 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.1

1 13 Del C. § 1920; 13 Del. C. § 1923

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