Delaware Child Custody Laws

by ECL Writer
Delaware Child Custody Laws

Navigating the intricacies of child custody laws is a crucial aspect of any divorce or separation, and understanding the specifics is particularly vital in Delaware. In the First State, child custody decisions are made with the best interests of the child at the forefront.

Delaware Child Custody Laws encompass a range of factors, from legal and physical custody to visitation rights. In this article delves into the key components of Delaware’s child custody laws, shedding light on the factors that influence court decisions and the criteria used to determine custody arrangements.

Whether you are a parent going through a divorce or simply seeking information on the legal framework surrounding child custody in Delaware, this comprehensive guide aims to provide clarity on the relevant laws and procedures governing this sensitive and critical aspect of family law.

Types of Child Custody in Delaware

There are two primary types of custody in Delaware: physical custody and legal custody. For every kind, there is a possibility of joint custody between parents or full custody for one parent.

Legal Custody in Delaware

Legal custody refers to a parent’s right to decide what’s best for their child in terms of education, healthcare, and religious upbringing. Decisions of that nature may be made by an exclusively legal custody holder without consulting the other parent.

Both parents have a right to participate in decision-making when they share legal custody. There are several methods to arrange this. It is not unusual for parents to have independent decision-making authority in several domains. For instance, one parent might choose the child’s school, while the other might decide on the child’s religious education.

Since joint legal custody increases both parents’ active involvement in their child’s life, it is by far the best result in custody issues.

In cases of joint and sole legal custody, each parent is entitled to ask for and obtain information from the other parent regarding:

  • The child’s academic advancement
  • medical care
  • noteworthy changes in the child’s life
  • conferences and school activities
  • unique religious occasions, and
  • additional pursuits that the parents might like to engage in.

(Delaware Code, Section 727(a), 2023.)

Physical Custody in Delaware

Physical custody is sometimes referred to as “residential arrangements” in Delaware because it describes the primary residence of the child. It covers the duty of parents to provide their children with regular everyday care and supervision, such as bathing, correcting behaviour, and meal preparation.

The child resides with the parent who has sole physical custody (sometimes referred to as the “custodial parent”), while the noncustodial parent normally has visitation rights (more on that below).

In addition, parents may choose to share joint physical custody, or shared residential arrangements, albeit this does not imply that the child spends an equal amount of time with each of them.

Practically speaking, joint residential arrangements function best when the parents dwell nearby. This generally lessens complications, particularly those related to transportation that may come up when a child actively participates in sports or other extracurricular activities after school.

Parenting Agreements

Parents seeking to establish a court-approved child custody and visitation arrangement can draft a detailed parenting plan for submission to the court. This plan, once approved, becomes a court order. The plan should prioritize the child’s best interests and cover key aspects such as determining the primary residence, allocating time for vacations, holidays, and birthdays, addressing last-minute schedule changes due to issues like illness, and establishing communication protocols between parents, especially in cases of hostility.

The parenting plan should specify communication frequency and methods when the child is with the other parent, along with details on visitation drop-offs, pick-ups, and transportation arrangements. Other considerations include addressing a parent’s right of first refusal for temporary child care, outlining procedures in case of relocation, and establishing dispute resolution mechanisms, such as mediation, to handle future disagreements about the plan.

A comprehensive parenting plan minimizes confusion and potential disputes, ensuring a smoother co-parenting experience while aligning with court-approved standards for the child’s welfare. Online divorce services may offer questionnaires to guide parents through the creation of such plans.

How Do Delaware Judges Make Custody Decisions?

Delaware judges determining custody matters prioritize the child’s well-being by considering various factors. They take into account the child’s preferences and the parents’ wishes, assessing the quality of relationships with parents, grandparents, siblings, and other household members. The child’s adjustment to home, school, and community is a crucial consideration, along with the mental and physical health of both the child and parents.

Additionally, judges evaluate the extent to which parents have fulfilled responsibilities for the child’s support, care, nurture, welfare, and education. Factors such as evidence of domestic violence and the criminal history of either parent or household residents are examined to ensure the child’s safety. This comprehensive approach, outlined in 13 Del. Code § 722(a) (2023), guides judges in making decisions aligned with the child’s best interests when parental consensus on custody or visitation is elusive.

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 encourages considering a child’s custody preferences, it doesn’t mandate strict adherence to those wishes. The landmark case of duPont v. duPont (216 A.2d 624, Del. 1966) emphasizes that a child’s mature and reasoned opinion should be taken into account, provided it isn’t a passing whim or temporary dissatisfaction.

The older the child, the more weight their preferences may carry, yet the ultimate decision remains rooted in the child’s best interests. Judges scrutinize the reasoning behind a child’s choice, giving less weight to preferences based on superficial reasons such as leniency or lavish gifts. Instead, if a child’s desire reflects a genuine preference for a more loving and engaged parent—demonstrated through activities like helping with homework or participating in the child’s interests—the judge is more likely to consider it.

However, if there’s suspicion of manipulation or pressure influencing the child’s choice, the judge may discount the stated preference. The key focus remains on ensuring the child’s well-being and making decisions that align with their best interests.

Do Children Have to Testify in Open Court?

It is the preference of judges that minors do not attend court. They make every effort to keep kids out of custody disputes so they aren’t forced to make the difficult decision to choose between their parents.

In Delaware, the youngster may be questioned by the judge in chambers, which is the courtroom. The judge may invite the attorneys to the interview, but parents are typically not allowed to attend. A transcript of the interview must be provided to the judge upon request from either parent. When a youngster isn’t accessible for an interview, the judge may take into consideration, if the statement is reliable, one that the child made outside of court. (Delaware County Code § 724, 2023)

To find out about a child’s preferences, judges may use the services of a professional, also known as a custody evaluator. Additionally, judges may designate a “guardian ad litem” (GAL) to represent the child’s interests or, in especially difficult situations, an attorney.

“Trial” Custody and Counseling

Delaware judges have the authority to award sole or joint temporary custody for a maximum of six months, allowing parents to prove their ability to comply with the custody plan. The judge has the option to either permanently extend the agreement or make any necessary modifications when the initial term is up.

Judges may include counselling for the parents—and the child, if appropriate—as part of the custody orders to assist them become better parents. (Delaware County Code § 727(b), 2023.)

Parents’ Visitation Rights in Delaware

Delaware law emphasizes fostering regular and meaningful contact between a child and both parents in custody arrangements. Custody orders must include a schedule detailing the child’s contact with each parent, with visitation for the non-primary residential parent. However, a judge may restrict or deny visitation if it poses a risk to the child’s physical health or significant emotional development (13 Del. Code §§ 727(c), 728(a) (2023)).

When establishing a parenting schedule, judges consider factors such as each parent’s work schedule, the child’s school commitments, and extracurricular activities. A common visitation schedule might involve weekday evenings, overnight stays on alternate weekends and extended periods during school breaks. However, variations are possible, tailored to the specific circumstances.

Courts strongly encourage parents to collaborate on visitation schedules, and judges typically approve mutually agreed-upon plans that prioritize 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.

Of course, that’s frequently easier said than done, especially with older teenagers. 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

Delaware law establishes a presumption against granting sole or joint custody to a parent with a history of domestic violence. However, this presumption may be rebutted under certain conditions. The abusive parent can regain custody if they have refrained from further domestic violence, completed a specialized family violence program, undergone alcohol or drug abuse counselling as deemed necessary by the judge, and demonstrated that custodial responsibilities align with the child’s best interests (13 Del. Code § 705A (2023)).

In cases where visitation with the abusive parent is permitted, the court must impose protective conditions. These may include supervised visitation conducted by trained personnel at a court-approved facility to ensure the child’s safety and prevent potential harm (13 Del. Code § 705B (2023)).

Modifying Custody or Visitation Orders in Delaware

Parents may find the need to modify a custody order as the needs of either the parents or the children evolve, particularly as children grow older. For example, a teenager might wish to live with a noncustodial parent due to conflicts with the custodial parent’s new family. However, it’s crucial to note that changing the parenting schedule requires court approval; it cannot be done unilaterally. Even if both parents agree on a change, they must submit a written agreement for a judge’s review and approval, similar to the process for the original custody order.

If a parent believes that modifying current orders for custody, visitation, or parent-child communication is in the child’s best interests, they can apply to the court for a modification. In Delaware, the rules and procedures for modifications vary depending on the type of order in question, such as visitation orders, orders based on parental agreement, or orders issued after a trial. Seeking court approval ensures that any changes made align with the child’s well-being and legal requirements.

Relocation and Child Custody in Delaware

In Delaware, if a parent plans to relocate out of state or far enough to significantly impact current custody arrangements for at least 60 days, the law mandates that the judge considers several factors when deciding on custody or visitation modifications. These factors, outlined in Section 734 of the Delaware Code, include:

  • Child’s Relationships: Assessing the child’s relationships with both parents, siblings, and other significant individuals in their life.
  • Child’s Age and Developmental Needs: Considering the child’s age, developmental stage, and needs, as well as predicting the probable impact of the relocation on the child’s physical, educational, and emotional development.
  • Preservation of Relationship: Evaluating whether suitable visitation arrangements could preserve the relationship between the child and the noncustodial parent, taking into account logistics and financial circumstances.
  • Child’s Preference: Taking into consideration the child’s age and maturity, and considering their preference regarding the relocation.
  • Parental Behavior Patterns: Examining whether the moving parent has displayed a pattern of either promoting or hindering the child’s relationship with the other parent.
  • Enhancement of Quality of Life: Assessing whether the child’s relocation will enhance the quality of life for both the child and the moving parent, including financial advantages, emotional benefits, and educational opportunities.
  • Reasons for Relocation: Understanding each parent’s reasons for either supporting or opposing the relocation.
  • Any Other Relevant Factor: Considering any other factor that may affect the child’s best interest.

Enforcing Custody and Visitation Orders in Delaware

In Delaware, if the other parent is not complying with custody or visitation orders, you can file a motion requesting the court’s intervention. A judge will hold a hearing to determine if there has been a violation of custody or visitation rights. If so, the judge may impose various remedies, such as extra visitation, temporary transfer of custody, a surcharge penalty for visitation violations, fines, or imprisonment for contempt of court orders.

The judge can also order the non-compliant parent to pay your costs and attorney’s fees related to the enforcement proceeding. Delaware law even allows for provisions in custody orders permitting police officers to enter private property to take physical custody of a child to enforce the order’s terms.

It’s important to note that interference with custody is considered a violation of Delaware’s criminal code, resulting in fines and/or jail time. The severity of the offence depends on whether the person interfering with custody removes the child from the state, with potential consequences ranging from a Class A misdemeanour to a Class G felony.

Grandparents’ Visitation Rights in Delaware

Under Delaware law, judges typically cannot grant grandparents or other nonparents the right to visit a child if either parent objects, unless there is evidence of abuse or neglect by the objecting parent. However, if a grandparent can prove by clear and convincing evidence that the parent’s objection is unreasonable and demonstrate by a preponderance of the evidence that the visitation won’t substantially interfere with the parent-child relationship, they may be granted visitation rights.

Even if parents agree to court-ordered visitation by nonparents, the judge will only approve it if it is in the child’s best interests, considering various factors. The Delaware Supreme Court has set a high standard for allowing visitation, as seen in the case of Grant v. Grant (173 A.3d 1051, Del. 2017). In this case, the judge was criticized for allowing supervised visitation in a therapeutic setting for grandparents who had undermined the parents’ authority and relationship with the children. The grandparents had engaged in behaviours such as not informing the parents about the children’s confessions, attempting to persuade the kids to seek more visitation, making false accusations against the parents, joining negative online groups, and disregarding the parents’ objections at the children’s events.

In summary, Delaware courts prioritize the best interests of the child and are cautious about granting visitation rights to nonparents, especially if there is evidence that such visitation could interfere with the parent-child relationship.

Leave a Comment

This blog is ONLY for informational or educational purposes and DOES NOT substitute professional legal advise. We take no responsibility or credit for what you do with this info.