Delaware Child Custody Laws

by ECL Writer
Delaware Child Custody Laws

Navigating the complexities of child custody laws can be daunting, especially for parents facing the emotional strain of separation or divorce. In Delaware, like in many other states, these laws are designed to prioritize the best interests of the child while ensuring fair treatment for both parents involved.

Understanding the nuances of Delaware’s child custody statutes is crucial for parents striving to secure a stable and nurturing environment for their children amidst familial changes. From legal terminology to custody arrangements, Delaware’s laws encompass various facets that influence parental rights and responsibilities.

In this article serves as a comprehensive guide to Delaware’s child custody laws, offering insights into the factors considered by the courts, the types of custody arrangements available, and the procedures involved in custody disputes. By shedding light on these critical aspects, parents can navigate the legal landscape with clarity and confidence, ultimately fostering smoother transitions for their families.

Types of Child Custody in Delaware

In Delaware, custody arrangements typically fall into two categories: legal custody and physical custody.

Legal Custody:

  • Legal custody involves decision-making authority regarding important aspects of a child’s life, such as education, healthcare, and religious upbringing.
  • In sole legal custody, one parent has the unilateral right to make these decisions without needing the other parent’s consent.
  • Joint legal custody allows both parents to participate in decision-making, potentially with each parent having authority over different areas.

Rights in Legal Custody:

  • Regardless of custody type, each parent has the right to request and receive information about the child’s education, medical care, significant life developments, school activities, religious events, and other pertinent matters.

Physical Custody:

  • Physical custody determines where the child primarily resides and involves the daily care and control of the child, including activities like bathing and meal preparation.
  • Sole physical custody means the child resides primarily with one parent, while the other parent typically has visitation rights.
  • Joint physical custody may involve the child spending time with both parents, though not necessarily equal amounts, and works best when the parents live close to each other.

In Delaware, joint legal custody is preferred as it encourages the active involvement of both parents in the child’s life. Physical custody arrangements aim to ensure the child’s well-being and facilitate their daily care and routines.

Parenting Agreements

1. Child’s Primary Residence:

The child’s primary residence shall be [Parent A’s/Parent B’s] home.

2. Schedule for Visitation:

  • Regular Visitation: The child shall spend alternating weekends with each parent, beginning from [day] after school until [day] morning.
  • Holidays and Special Occasions: The child’s time during holidays, school breaks, birthdays, and other special occasions shall be divided equally between the parents, with [Parent A/Parent B] having the child on even years and [Parent B/Parent A] on odd years.
  • Vacations: Each parent shall have the opportunity to take the child on vacation for a period not exceeding two weeks per year, with notice given to the other parent at least [number] weeks in advance.
  • Last-Minute Changes: In the event of last-minute changes to the parenting schedule due to unforeseen circumstances such as illness, the parents agree to communicate promptly and reasonably to make alternative arrangements.

3. Communication:

  • Between Parents: Communication between the parents regarding the child shall primarily occur via [email/text/phone], with the aim of maintaining a respectful and cooperative relationship for the child’s benefit.
  • Communication with Child: The parent with whom the child is not currently residing shall have the right to communicate with the child via [phone/video call] [number] times per week at mutually agreed-upon times.

4. Logistics:

  • Drop-offs and Pick-ups: Visitation drop-offs and pick-ups shall occur at [location] at [time].
  • Transportation: Each parent shall be responsible for transportation for visitation, as well as to and from school and extracurricular activities during their respective parenting time.
  • Right of First Refusal: If a parent requires temporary childcare, the other parent shall have the right of first refusal to provide care before arranging alternative arrangements.

5. Relocation:

  • If one parent must relocate, both parents agree to negotiate in good faith to amend the parenting plan to accommodate the change in circumstances, with the child’s best interests as the primary consideration.

6. Dispute Resolution:

  • Any disagreements regarding the parenting plan or its modifications shall first be attempted to be resolved through mediation or another alternative dispute resolution method before seeking intervention from the court.

How does child custody work in Delaware?

In Delaware, child custody follows the principle that the custodial parent holds authority over major decisions regarding the child’s upbringing, including residence, education, healthcare, and religious affiliation. If parents share joint custody, a custody order specifies the primary residence with one parent. However, joint custody often involves both parents collaborating on significant decisions.

The court may determine custody arrangements based on the child’s best interests, considering factors like parental stability, relationship with the child, and the child’s preferences, depending on their maturity. Custody orders aim to maintain the child’s well-being and ensure a stable environment. Delaware’s legal system prioritizes the child’s welfare, seeking to foster healthy relationships between the child and both parents, even in cases of joint custody.

What age can a child decide which parent to live with in Delaware?

In Delaware, there isn’t a set age at which a child’s preference regarding custodial arrangements becomes legally binding. However, the court does consider the opinion of older, more mature children, typically giving more weight to teenagers compared to younger children, such as those under 12. While the child’s preference is taken into account, it’s not the sole determining factor.

Instead, the court assesses various aspects, including the child’s maturity level, the reasons behind their preference, and what’s deemed to be in their best interests. Ultimately, the decision rests with the judge, who weighs all relevant factors to reach a custody arrangement that serves the child’s welfare.

Is Delaware a 50-50 custody state?

In Delaware, custody arrangements typically involve either joint legal custody or sole legal custody. Joint legal custody entails both parents sharing responsibility for making major decisions regarding the child’s upbringing, such as education, healthcare, and religious upbringing.

Alternatively, sole legal custody grants one parent the authority to make these decisions independently, while the child primarily resides with that parent. Visitation rights are typically established for the non-custodial parent to maintain a relationship with the child.

Delaware’s family law, outlined in 13 Del. C. § 727, governs these arrangements, aiming to ensure the child’s best interests are prioritized while facilitating a healthy relationship with both parents, even in cases of sole custody. Thus, Delaware doesn’t operate on a strict 50/50 custody model but rather emphasizes parental cooperation and the child’s well-being in custody decisions.

How Do Delaware Judges Make Custody Decisions?

When determining custody or visitation arrangements in Delaware, judges prioritize the child’s best interests, considering various factors outlined in the law. These include the child’s preferences, the quality of relationships with parents, relatives, and other significant individuals, and the child’s adjustment to their environment. Additionally, judges assess the mental and physical health of both the child and parents, as well as each parent’s fulfilment of their responsibilities towards the child’s well-being and upbringing.

Crucially, evidence of domestic violence or a criminal history within the household is weighed, aiming to ensure the child’s safety and security. By carefully evaluating these aspects, Delaware courts aim to make decisions that promote the child’s overall welfare and stability, even in situations where parents cannot agree.

Does a Parent’s Gender Play a Role in Delaware Custody Cases?

No. Delaware does not give favour to one parent over the other based on gender. Judges are also prohibited from taking into account a parent’s behaviour if it has no bearing on the parent-child connection. (DEC Section 722(b) (2023) of 13 Del. Code.)

Can Children Express a Preference in Delaware Custody Cases?

In Delaware, while the law mandates consideration of a child’s custody preferences, judges aren’t obligated to strictly adhere to them. However, the court should not disregard mature and thoughtful opinions, provided they aren’t transient or influenced by external factors. The weight given to a child’s opinion generally increases with age but remains subject to the child’s best interests.

A child’s reasoning behind their preference is pivotal. If it’s rooted in superficial desires like leniency or material gifts, it’s unlikely to sway the judge. However, if the preference reflects genuine emotional connection or active parental involvement, it holds more sway.

Should a judge suspect coercion or manipulation in the child’s decision, they will likely discount it. Ultimately, the court’s decision hinges on what is deemed most beneficial for the child’s welfare.

Parents’ Visitation Rights in Delaware

Delaware law emphasizes facilitating regular and meaningful contact between children and both parents after a custody order is established. This involves including a visitation schedule in every custody order, detailing the child’s time with each parent. However, visitation may be limited or denied if it poses a risk to the child’s physical health or emotional well-being.

When determining the visitation schedule, judges consider factors such as the parents’ work schedules, the child’s school and extracurricular commitments, and other family circumstances. A typical schedule might involve the noncustodial parent having the child for specific periods during the week, alternating weekends overnight, and longer visits during school breaks. However, there’s flexibility in designing visitation schedules to suit individual situations.

While courts prefer parents to agree on visitation schedules themselves, judges will approve any arrangement that seems to be in the child’s best interests.

Can Children Refuse Visitation?

Until they are legally adults—that is, until they turn 18 or become otherwise emancipated in Delaware—children are typically not permitted to decline to see their parents. Up until that point, the custodial parent must make sure the child complies with visitation guidelines.

Naturally, it’s not always easy to accomplish that, particularly when dealing with older kids. The parents may need to return to court to ask for a change of the current visitation schedule if they are unable to resolve the issue through dialogue with the uncooperative child or by seeking outside assistance (such as a child psychologist) (more on modifications below).

Domestic Violence and Custody in Delaware

In Delaware, the law prioritizes the safety and well-being of children when determining custody arrangements in cases involving domestic violence. The default stance is that a parent who has committed domestic violence cannot have sole or joint custody, nor can the child primarily reside with them. However, there are avenues for the abusive parent to potentially regain some custodial rights.

These avenues include demonstrating a cessation of abusive behaviour, completion of specialized programs tailored for perpetrators of family violence, undergoing counselling for substance abuse if deemed necessary by the judge, and proving that maintaining some level of custodial responsibility is in the child’s best interests.

Even if visitation rights are granted to the abusive parent, stringent conditions must be in place to safeguard the child from further harm. These conditions may include supervised visitation, typically conducted by trained personnel at a court-approved facility. By imposing such measures, the court aims to balance the child’s right to a relationship with both parents while ensuring their safety remains paramount.

Modifying Custody or Visitation Orders in Delaware

As children grow older, the evolving dynamics within families may necessitate changes to custody arrangements. For example, a teenager experiencing conflicts with a custodial parent’s new family may wish to live with the noncustodial parent. However, altering custody arrangements requires court approval. While parents can mutually agree on changes, they must submit a written agreement for judicial review.

Seeking a modification involves applying to the court, particularly in Delaware, where procedures vary based on the type of order—whether visitation, parental agreement-based, or trial-issued. Ultimately, any adjustment to custody, visitation, or parent-child communication must prioritize the child’s best interests. This ensures that decisions made reflect the evolving needs and circumstances within the family unit.

Enforcing Custody and Visitation Orders in Delaware

If your child’s other parent is failing to adhere to custody or visitation orders, you have legal recourse to address the situation. You can initiate a motion, a formal written request to the court, seeking intervention to enforce the custody or visitation rights established by the court. During a hearing convened by a judge to address your enforcement request, the court will determine whether the other parent has indeed violated, obstructed, compromised, or hindered your custody or visitation rights, or your child’s entitlement to parental contact. Should such violations be established, the judge holds the authority to impose various fair sanctions or remedies to ensure consistent and ongoing parent-child contact. These measures may include:

  • Granting additional visitation time with the child.
  • Temporarily transferring custody or primary residence, or both, for a period of up to 30 days.
  • Imposing a surcharge penalty of up to 10% of the monthly child support obligation for each instance of visitation violation by the noncustodial parent, provided such violations are more than minimal and not justified by valid reasons or adequate notice to the custodial parent.
  • Issuing fines or imposing a term of imprisonment if a parent is found to be in contempt of prior court orders.

Furthermore, the judge is mandated to order the non-compliant parent to cover your expenses and reasonable attorney’s fees associated with the enforcement proceedings.

In addition to these measures, Delaware law empowers judges to include provisions in custody orders that authorize law enforcement officers to enter private property to enforce the custody terms specified in the order.

It’s crucial to note that interference with custody is considered a violation of Delaware’s criminal code, which can result in fines and/or imprisonment. Typically classified as a Class A misdemeanour, instances, where the individual interfering with custody removes the child from the state, escalate to a Class G felony.

By seeking legal recourse and utilizing the provisions available under Delaware law, you can take action to ensure the enforcement of your custody and visitation rights, safeguarding the well-being and stability of your child.

Grandparents’ Visitation Rights in Delaware

Under Delaware law, judges may not grant grandparents or other nonparents the right to visit a child over parental objection unless certain conditions are met. These conditions include cases of parental abuse or neglect or when clear and convincing evidence demonstrates the parent’s objection is unreasonable, and visitation won’t substantially disrupt the parent-child relationship.

Additionally, visitation must be in the child’s best interests. In a notable case, the Delaware Supreme Court ruled against allowing grandparents supervised visitation, as they failed to prove it wouldn’t harm the parent-child relationship. The grandparents’ actions, such as undermining parental authority and making false accusations, contributed to this decision. This case highlights the significance of maintaining the parent-child relationship and ensuring visitation aligns with the child’s welfare. (Grant v. Grant, 173 A.3d 1051, Del. 2017).

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