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
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.
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
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.
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.
Can 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.1 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.2
1 13 Del. C. § 501
2 13 Del. C. § 1512
If 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.1
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.
1 13 Del.C. § 1509(a)(3)
What 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.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