Legal Information: Delaware

Custody

Updated: 
November 29, 2021

How 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.1

1 13 Del. C. § 722

If 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.1 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.

1 13 Del. C. § 704A

Can 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 Places that Help tab on the top of this page.

During a custody proceeding, if a parent wants to relocate with the child, what factors will the judge consider?

When there is an ongoing custody case and one party wants to relocate with the child for 60 days or more, the judge will decide whether or not to allow the relocation. This applies to relocations out of state as well as in-state relocations that greatly affect the current custodial and residential arrangement or order. The judge must consider the following factors when making his/her decision:

  • the nature, quality, extent of involvement, and duration of the child’s relationship with the both parties, siblings, and other significant individuals in the child’s life;
  • the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
  • how easy or hard it would be to keep up the relationship between the non-relocating party and the child through visitation arrangements, considering the logistics and financial circumstances of the parties;
  • whether the child wants to relocate or not, taking into consideration the age and maturity of the child;
  • any established pattern of conduct of the relocating party that either promotes or interferes with the relationship of the child and the non-relocating party;
  • whether the relocation of the child will improve the general quality of life for both the party seeking the relocation and the child, including financial or emotional benefit or educational opportunity;
  • the reasons each party has for either relocating or for opposing the relocation; and
  • any other factor affecting the best interest of the child.1

​1 13 Del. C. § 734

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