Delaware Family Court determines child custody based on the best interests of the child standard codified in 13 Del. C. § 722. The filing fee for a custody petition is $100 ($90 petition fee plus $10 court security assessment), and Delaware courts require mediation before most custody hearings. Delaware law recognizes both joint legal custody and sole legal custody, with no statutory preference for either parent based on gender. The court evaluates eight specific factors when making custody determinations, and all parents must complete a mandatory Parent Education Class before their case can be finalized.
Key Facts: Delaware Child Custody at a Glance
| Requirement | Details |
|---|---|
| Filing Fee | $100 total ($90 petition + $10 security assessment) |
| Residency Requirement | Child must reside in Delaware for 6+ consecutive months (home state jurisdiction under UCCJEA) |
| Waiting Period | No mandatory waiting period for custody orders |
| Mediation | Required unless domestic violence exception applies |
| Best Interest Standard | 8 factors under 13 Del. C. § 722 |
| Custody Types | Joint legal custody or sole legal custody |
| Parent Education | Mandatory Parent Education Class required |
| Modification Standard | Varies based on original order type and time elapsed |
Types of Child Custody in Delaware
Delaware law recognizes two primary forms of legal custody: joint legal custody and sole legal custody, as defined under 13 Del. C. § 727. Joint legal custody means both parents share decision-making responsibilities and divide parenting time in an equitable manner, though not necessarily equal. Sole legal custody grants one parent primary caregiving responsibility while the other parent receives visitation rights. Delaware courts do not presume that either parent is better qualified based on gender, making custody determinations entirely dependent on the child's best interests.
Joint Legal Custody
Joint legal custody in Delaware means both parents share the responsibilities of raising the child and have equal rights to make major decisions regarding education, healthcare, and religious upbringing. Under joint custody arrangements, parenting time is divided equitably between both parents, though the schedule does not need to be exactly 50/50. Delaware Family Court favors joint custody arrangements when parents demonstrate the ability to cooperate and communicate effectively about their children's needs.
When parents have joint legal custody, each parent retains the right to receive information about the child's schooling, medical treatment, and any significant activities. This includes school conferences, medical appointments, religious events, and extracurricular activities. Neither parent can unilaterally exclude the other from receiving this information, regardless of the residential schedule.
Sole Legal Custody
Sole legal custody in Delaware means one parent has primary responsibility for the child's care, and the child primarily resides with that parent. The non-custodial parent typically receives a visitation schedule that allows for ongoing contact with the child. Even when one parent has sole legal custody, the non-custodial parent retains the right to receive information about the child's education, medical care, and significant life events upon request.
Physical Custody and Residential Arrangements
Delaware courts determine which parent the child will primarily reside with and establish a visitation schedule with the other parent. The residential arrangement must be consistent with the child's best interests and maturity level, designed to permit and encourage frequent and meaningful contact with both parents. The court may deviate from this standard only if contact with one parent would endanger the child's physical health or significantly impair emotional development.
Best Interest Factors Under Delaware Law
Delaware courts must consider eight specific factors when determining custody arrangements, as outlined in 13 Del. C. § 722. The court evaluates all relevant circumstances but gives particular weight to these enumerated factors. No single factor is automatically determinative, and judges have discretion to weigh each factor based on the specific circumstances of each case.
The Eight Statutory Factors
- The wishes of the child's parent or parents regarding custody and residential arrangements
- The wishes of the child regarding the custodian and residential arrangements
- The interaction and interrelationship of the child with parents, grandparents, siblings, and other significant individuals
- The child's adjustment to home, school, and community
- The mental and physical health of all individuals involved
- Past and present compliance by both parents with their parental rights and responsibilities under 13 Del. C. § 701
- Evidence of domestic violence as provided in Chapter 7A of Title 13
- The criminal history of any party or household resident, including guilty pleas, no contest pleas, or convictions
Child's Wishes and Preferences
Delaware law requires courts to consider the child's wishes regarding custody and residential arrangements. However, judges are not required to follow the child's preferences, particularly for younger children. Courts give greater weight to the preferences of mature children who can articulate reasoned opinions about their living situation. There is no specific age at which a child's preference becomes controlling, but older teenagers' wishes typically carry more influence than those of younger children.
Domestic Violence Considerations
Evidence of domestic violence is a critical factor in Delaware custody determinations. Under 13 Del. C. § 706A, when there is credible evidence that a parent has committed domestic violence, the court must consider the impact on the child and may restrict that parent's custody or visitation rights. Courts may order supervised visitation or impose conditions designed to protect the child and the victimized parent from further harm.
Filing for Custody in Delaware
Filing for child custody in Delaware requires submitting specific forms to the Family Court and paying a $100 filing fee ($90 petition fee plus $10 court security assessment). Either parent may file a custody petition when parents live separate and apart. The filing process involves completing mandatory forms, serving the other parent, and attending mediation before any court hearing is scheduled.
Required Forms
Delaware Family Court requires these forms for an initial custody petition:
- Petition for Custody (Form 345): Outlines the petitioner's case and must be notarized
- Custody Separate Statement (Form 346): Explains the child's past and present living arrangements
- Information Sheet (Form 240): Contains identifying information about the parties
- Custody, Visitation and Guardianship Disclosure Report (Form 364): Required before mediation
Preliminary Injunction
When a Petition for Custody is filed in Delaware Family Court, a Preliminary Injunction is automatically served on both parents. This injunction orders both parents to maintain the child's permanent residence in Delaware while the custody proceedings are pending. Neither parent may relocate the child outside Delaware without written permission from the other parent or court approval.
Fee Waivers
Parents who cannot afford the $100 filing fee may request a fee waiver by filing an Affidavit in Support of Application to Proceed In Forma Pauperis. The court will evaluate the applicant's financial circumstances and may waive all or part of the filing fee for qualifying individuals. As of March 2026, verify current fee amounts with your local Family Court Clerk at courts.delaware.gov/help/fees/familyfiling.aspx.
Mediation Requirements in Delaware
Delaware Family Court requires mediation in all custody, visitation, and guardianship proceedings unless an exception applies. The court mandates mediation conferences with a court staff mediator to identify disputed issues and attempt settlement before scheduling judicial hearings. Approximately 60-70% of custody cases settle through mediation, avoiding the need for a contested court hearing.
The Mediation Process
After a custody petition is filed and the respondent is served, the case is referred to mediation. Both parents must attend mediation, and attorneys may attend but are not required. Children do not attend mediation sessions, and witnesses are not permitted. Before the mediation conference, each parent must complete the Custody, Visitation and Guardianship Disclosure Report (Form 364) and bring it to the session.
Domestic Violence Exception
Mediation is not ordered when one party has committed domestic violence against the other party or when a no-contact order is currently in effect. This exception protects domestic violence victims from being forced into negotiation with their abusers. The victim's attorney may request mediation if the victim consents, but such sessions require the attorney's presence throughout.
Mediation Outcomes
If parents reach agreement during mediation, a consent order is drafted and signed by both parties. If no agreement is reached, the mediator may recommend a temporary contact schedule pending the court hearing. Cases that do not settle in mediation are assigned to a judge for a full evidentiary hearing at a later date.
Parenting Plans in Delaware
Delaware courts require comprehensive parenting plans that address all aspects of child-rearing responsibilities. A parenting plan must set forth specific details concerning parental duties, medical coverage, parenting time schedules, holiday and vacation arrangements, and any other issues relevant to the child's wellbeing. The court must review and approve the parenting plan before it becomes enforceable.
Required Elements
A complete Delaware parenting plan should include:
- A detailed parenting time schedule specifying which days and times each parent has custody
- Holiday and vacation schedules with specific dates and alternating arrangements
- Decision-making authority for education, healthcare, and religious matters
- Transportation arrangements for custody exchanges
- Communication protocols between parents and between each parent and child
- Provisions for handling schedule changes and disputes
- Geographic restrictions on where each parent may live
Parent Education Requirement
All parents involved in custody proceedings in Delaware must complete a mandatory Parent Education Class. This requirement applies to both initial custody cases and modification proceedings. The class covers topics such as the impact of divorce on children, co-parenting strategies, and communication techniques. Parents must complete this class before the court will finalize custody orders.
Modifying Custody Orders in Delaware
Delaware law permits modification of custody orders under specific circumstances, with the standard varying based on how the original order was entered and how much time has elapsed. The court applies different standards for consent orders versus orders entered after contested hearings, recognizing that some custody arrangements deserve greater stability protection than others.
Consent Order Modifications
When the original custody order was entered by consent of both parents, either parent may seek modification at any time by demonstrating that modification would serve the child's best interests under 13 Del. C. § 722. The best interest standard is the same as for initial custody determinations, making consent orders relatively easier to modify than contested orders.
Contested Order Modifications Within Two Years
When the original custody order was entered after a full hearing and less than two years have elapsed, the court may modify custody only upon finding that continuing to enforce the current order would endanger the child's physical health or significantly impair the child's emotional development. This heightened standard protects children from repeated litigation and provides stability during the critical early period after a custody determination.
Contested Order Modifications After Two Years
When more than two years have passed since a contested custody order was entered, the court may modify custody after considering whether the harm likely to be caused by modification is outweighed by the benefits to the child. This standard is less restrictive than the two-year standard but still requires the court to weigh potential disruption against potential benefits.
Visitation Modifications
Modifications to visitation schedules may be made at any time when the child's best interests would be served, regardless of how the original order was entered or how much time has elapsed. This more flexible standard recognizes that visitation adjustments are typically less disruptive than changes to primary custody.
Child Custody and Relocation in Delaware
Delaware law imposes significant restrictions on parents who wish to relocate with a child during custody proceedings or after a custody order is in place. Under 13 Del. C. § 734, any proposed relocation for 60 days or more that involves moving outside Delaware or materially affects the current custody arrangement requires court approval or the other parent's written consent.
Relocation Factors
When evaluating a relocation request, Delaware courts must consider multiple factors:
- The nature, quality, and duration of the child's relationship with both the relocating and non-relocating parent
- The child's age, developmental stage, and the likely impact of relocation on physical, educational, and emotional development
- The feasibility of preserving the non-relocating parent's relationship through modified visitation arrangements
- The logistics and financial circumstances of maintaining meaningful contact after relocation
- The child's preferences, considering age and maturity
- The relocating parent's reasons for the move and whether it will improve quality of life for parent and child
- The non-relocating parent's reasons for opposing the move
Restrictions During Pending Cases
While custody proceedings are pending, the Preliminary Injunction prohibits either parent from removing the child from Delaware without written consent from the other parent or court permission. Violating this restriction can result in sanctions and may negatively impact the violating parent's custody case.
Grandparent and Third-Party Visitation Rights
Delaware provides a mechanism for grandparents and other third parties to seek visitation with a child under 13 Del. C. § 2412. However, these rights are subordinate to parents' fundamental constitutional right to direct their children's upbringing. Third-party visitation requires meeting specific statutory criteria and overcoming any parental objection.
Who May File for Third-Party Visitation
Any adult may file a petition for third-party visitation if they can establish a substantial and positive prior relationship with the child. Additionally, grandparents, aunts, uncles, and adult siblings of the child may file without demonstrating a pre-existing relationship. The petitioner must show that visitation is in the child's best interests.
Overcoming Parental Objections
When a parent objects to third-party visitation, the court may not grant visitation unless the parent has abused or neglected the child, or the petitioner proves by clear and convincing evidence that the parental objection is unreasonable, and proves by a preponderance of the evidence that visitation will not substantially interfere with the parent-child relationship. This high evidentiary standard protects parental rights while allowing visitation in appropriate cases.
Jurisdiction and Interstate Custody Disputes
Delaware has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which determines when Delaware courts have authority to make custody decisions. Generally, Delaware courts have jurisdiction when Delaware is the child's "home state," meaning the child has lived in Delaware with a parent for at least six consecutive months immediately before filing the custody case.
Continuing Exclusive Jurisdiction
Once a Delaware court issues a custody order, Delaware retains exclusive continuing jurisdiction over that child's custody until certain conditions are met. Delaware maintains jurisdiction as long as at least one parent or the child continues to reside in Delaware. Other states generally may not modify Delaware custody orders unless Delaware relinquishes jurisdiction or all parties have moved away.
Emergency Jurisdiction
Delaware courts may exercise temporary emergency jurisdiction to protect a child from abuse or mistreatment, even when Delaware is not the child's home state. Emergency orders are temporary and remain in effect only until a court with proper jurisdiction can address the matter.
Frequently Asked Questions About Delaware Child Custody
How much does it cost to file for custody in Delaware?
The total filing fee for a custody petition in Delaware is $100, consisting of a $90 petition fee plus a $10 court security assessment. Fee waivers are available through an Affidavit in Support of Application to Proceed In Forma Pauperis for parents who demonstrate financial hardship. Child support modification petitions have no filing fee. As of March 2026, verify current fees at courts.delaware.gov.
At what age can a child decide which parent to live with in Delaware?
Delaware law does not specify an age at which a child can choose their custodial parent. Courts consider the child's wishes as one of eight best interest factors under 13 Del. C. § 722, giving greater weight to mature children who can articulate reasoned preferences. Judges are not required to follow a child's preference regardless of age, but older teenagers' wishes typically carry more influence.
Is mediation required for custody cases in Delaware?
Yes, Delaware Family Court requires mediation in all custody, visitation, and guardianship proceedings unless a domestic violence exception applies. Mediation is not ordered when one party has committed domestic violence or when a no-contact order is in effect. Approximately 60-70% of cases settle through mediation, avoiding contested court hearings.
How long does a custody case take in Delaware?
A Delaware custody case typically takes 4-8 months from filing to final order, depending on whether the case settles in mediation or proceeds to a contested hearing. Cases that resolve through mediation can be completed in 2-4 months. Contested cases requiring judicial hearings may take 6-12 months or longer due to court scheduling and evidence presentation requirements.
Can I move out of state with my child during a custody case in Delaware?
No, the Preliminary Injunction issued when a custody petition is filed prohibits both parents from relocating the child outside Delaware without written consent from the other parent or court approval. Violating this restriction can result in sanctions and may harm your custody case. After a custody order is entered, any relocation of 60+ days requires court approval under 13 Del. C. § 734.
Does Delaware prefer mothers in custody cases?
No, Delaware law explicitly prohibits gender-based preferences in custody determinations. Under 13 Del. C. § 722, courts may not presume that either parent is better qualified based on sex. Custody decisions are based solely on the child's best interests, with both parents evaluated equally on the eight statutory factors.
How do I modify a custody order in Delaware?
To modify a custody order, file a Motion and Affidavit to Modify Custody with Delaware Family Court. The modification standard depends on how the original order was entered: consent orders may be modified whenever best interests would be served; contested orders less than two years old require showing the child would be endangered by continuing the current arrangement; orders more than two years old require showing benefits outweigh potential harm.
Can grandparents get custody or visitation in Delaware?
Grandparents may petition for visitation under 13 Del. C. § 2412, but must overcome any parental objection by clear and convincing evidence that the objection is unreasonable. Grandparents may obtain custody only when there are documented instances of neglect, abuse, or substance abuse substantially affecting the child. Grandparents' rights are subordinate to parents' constitutional rights to direct their children's upbringing.
What is joint custody in Delaware?
Joint legal custody in Delaware means both parents share decision-making responsibilities for the child's education, healthcare, and religious upbringing, and divide parenting time equitably (though not necessarily equally). Under 13 Del. C. § 727, joint custody parents have equal rights to receive information about school, medical treatment, and significant activities. Courts favor joint custody when parents can cooperate effectively.
Do I need a lawyer for a custody case in Delaware?
While Delaware permits self-representation in custody cases, legal representation is strongly recommended given the complexity of custody law and the stakes involved. The Family Court Resource Center provides assistance to self-represented litigants, but cannot give legal advice. Attorneys can help navigate mediation, prepare evidence, and advocate effectively in court hearings.