Delaware courts decide child custody based on the best interests of the child standard under 13 Del.C. § 722, evaluating eight statutory factors to determine whether joint custody or sole custody serves the child's needs. Joint legal custody is the preferred outcome in Delaware custody cases because it promotes the active participation of both parents in raising their children. The filing fee for a custody petition in Delaware Family Court is $100 total ($90 base fee plus $10 court security assessment), and mediation is mandatory before any contested custody hearing unless domestic violence is present.
Key Facts: Delaware Custody at a Glance
| Factor | Delaware Law |
|---|---|
| Filing Fee | $100 ($90 + $10 security fee) as of March 2026 |
| Residency Requirement | Child must have lived in Delaware for 6 consecutive months (UCCJEA) |
| Mediation | Mandatory before contested hearing (except domestic violence cases) |
| Custody Standard | Best interests of the child (13 Del.C. § 722) |
| Gender Preference | None—courts cannot prefer either parent based on sex |
| Parenting Education | Required for all parents in custody cases |
| Waiting Period for Modification | 2 years before modifying court-ordered custody (exceptions apply) |
| Domestic Violence Presumption | Rebuttable presumption against custody to perpetrators |
What Is Joint Custody in Delaware?
Joint custody in Delaware means both parents share legal decision-making authority and divide parenting time in an equitable manner, though not necessarily equal. Under 13 Del.C. § 727, parents with joint legal custody must both participate in major decisions about education, medical treatment, religious upbringing, and extracurricular activities. Delaware Family Court considers joint legal custody the preferred arrangement because research shows children benefit from maintaining meaningful relationships with both parents.
Delaware recognizes two distinct components of joint custody:
Joint Legal Custody
Joint legal custody grants both parents equal authority to make significant decisions affecting the child's welfare. Under Delaware law, neither parent can unilaterally decide matters regarding:
- Educational placement and school enrollment decisions
- Medical treatment and healthcare provider selection
- Religious instruction and participation
- Extracurricular activities and sports involvement
- Mental health treatment and counseling services
Even when one parent has primary physical custody, joint legal custody requires both parents to consult and agree on these major decisions. Delaware courts may appoint a tiebreaker mechanism, such as a parenting coordinator, when parents cannot reach agreement on specific issues.
Joint Physical Custody
Joint physical custody in Delaware requires the child to spend at least 35% of their time—approximately 128 overnights annually—with each parent. A true 50/50 joint physical custody arrangement involves approximately 182 overnights per year with each parent. Common 50/50 schedules used in Delaware include:
- 2-2-5-5 rotation: Two days with Parent A, two days with Parent B, then five days with each parent alternating
- 3-4-4-3 rotation: Three days with Parent A, four days with Parent B, then four days with Parent A, three days with Parent B
- Alternating weeks: Child spends one full week with each parent
- 2-2-3 rotation: Two days with Parent A, two days with Parent B, three days with Parent A, then the pattern reverses
Delaware Family Court provides Contact Guidelines that serve as a default schedule when parents cannot agree. These guidelines establish baseline visitation frameworks based on the child's age and developmental needs.
What Is Sole Custody in Delaware?
Sole custody in Delaware grants one parent exclusive legal and physical custody of the child, with the non-custodial parent typically receiving scheduled visitation rights. Under 13 Del.C. § 728, a parent seeking sole custody must demonstrate that awarding custody to the other parent would endanger the child's physical health or significantly impair the child's emotional development. Sole custody is not the default arrangement in Delaware—the requesting parent carries the burden of proving why joint custody would harm the child.
Delaware courts distinguish between two forms of sole custody:
Sole Legal Custody
Sole legal custody empowers one parent to make all major decisions regarding the child's upbringing without consulting the other parent. The non-custodial parent retains information rights under 13 Del.C. § 727, meaning they can still access:
- School progress reports and attendance records
- Medical treatment information and health records
- School activities, conferences, and events
- Religious events and activities
- Phone and mail contact with the child
Sole legal custody does not terminate the non-custodial parent's right to receive information about their child—it only removes their decision-making authority.
Sole Physical Custody
Sole physical custody establishes the child's primary residence with one parent while the other parent receives a visitation schedule. The non-custodial parent typically receives every other weekend, one evening per week, alternating holidays, and extended summer visitation. Delaware courts aim to preserve frequent and meaningful contact between the child and both parents unless such contact would endanger the child.
The 8 Best Interest Factors in Delaware Custody Cases
Delaware Family Court judges evaluate custody petitions under 13 Del.C. § 722, which mandates consideration of eight specific factors when determining custody arrangements. No single factor automatically controls the outcome—judges weigh all factors together based on the specific circumstances of each family.
Factor 1: Parents' Wishes Regarding Custody
The court considers what each parent requests regarding legal custody, physical custody, and residential arrangements. Parents should articulate a specific custody proposal in their petition and supporting documentation. Judges evaluate whether each parent's requested arrangement reflects the child's needs or primarily serves the parent's convenience.
Factor 2: Child's Preferences
Delaware law permits judges to consider the custody preferences of children who are sufficiently mature to form an intelligent opinion. There is no statutory age at which a child's preference becomes controlling—judges assess maturity on a case-by-case basis. Children ages 12 and older typically receive greater weight for their stated preferences, though judges may disregard preferences that appear coached or manipulated by a parent.
Factor 3: Relationships With Family Members
The court examines the child's interaction and relationship quality with parents, grandparents, siblings, step-parents, and other household members. Judges assess which parent facilitates healthy relationships with extended family and whether either parent alienates the child from relatives. A parent who actively encourages the child's bond with the other parent often receives favorable consideration.
Factor 4: Home, School, and Community Adjustment
Stability matters in Delaware custody decisions. Courts evaluate how well the child has adjusted to their current home environment, school placement, and community connections. Judges consider whether proposed custody arrangements would require relocating the child away from established friendships, school support systems, and community activities.
Factor 5: Mental and Physical Health
Delaware courts examine the mental and physical health of all individuals involved in the custody case, including parents, children, and other household members. A parent's mental health condition does not automatically disqualify them from custody—the relevant question is whether the condition affects their ability to parent effectively. Substance abuse issues, untreated mental illness, or physical conditions that impair parenting capacity weigh against custody awards.
Factor 6: Parental Compliance History
Judges evaluate each parent's past and present compliance with their parental rights and responsibilities under 13 Del.C. § 701. This factor examines whether each parent has historically met their obligations regarding:
- Financial support for the child
- Involvement in educational activities
- Attendance at medical appointments
- Participation in the child's daily care
- Cooperation with existing custody and visitation orders
A parent who has failed to exercise visitation rights, pay child support, or participate in the child's life faces an uphill battle when seeking expanded custody.
Factor 7: Evidence of Domestic Violence
Under 13 Del.C. § 705A, Delaware law creates a rebuttable presumption that perpetrators of domestic violence should not receive sole or joint custody of any child. This presumption applies when a parent has been found to have committed domestic violence as defined in Chapter 7A of Title 13. The perpetrator can overcome this presumption only by demonstrating:
- No further acts of domestic violence have occurred
- Successful completion of a domestic violence intervention program
- Successful completion of substance abuse counseling (if court-ordered)
Domestic violence findings carry substantial weight in Delaware custody decisions and often result in supervised visitation or complete denial of custody to the perpetrator.
Factor 8: Criminal History
Delaware courts consider the criminal history of each parent and any other person residing in the household. Convictions for violent crimes, child abuse, sexual offenses, or drug-related offenses weigh heavily against custody awards. Under 13 Del.C. § 728(d), courts cannot order visitation in a correctional facility if the incarcerated parent is a sex offender or has been convicted of first or second-degree murder.
Joint Custody vs. Sole Custody: Comparison Table
| Feature | Joint Custody | Sole Custody |
|---|---|---|
| Legal Decision-Making | Both parents share authority | One parent decides alone |
| Physical Custody | Minimum 35% time with each parent | Child primarily resides with one parent |
| Information Rights | Both parents have full access | Non-custodial parent retains information rights |
| Relocation | Requires agreement or court approval | May still require notice to other parent |
| Modification Standard | Best interests of child | Must show endangerment within 2 years |
| Conflict Level | Requires parental cooperation | Appropriate when cooperation impossible |
| Court Preference | Preferred arrangement in Delaware | Granted when joint custody would harm child |
| Child Support | Calculated using shared custody formula | Standard child support guidelines apply |
Delaware Custody Process: Step-by-Step
Filing for custody in Delaware involves multiple stages, mandatory mediation, and parenting education requirements. The process typically takes 3 to 12 months from filing to final order, depending on whether parents reach agreement or require a contested hearing.
Step 1: Establish Jurisdiction
Delaware courts have jurisdiction over custody cases only when Delaware is the child's home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The child must have lived in Delaware with a parent for at least six consecutive months immediately before filing. For children under six months old, Delaware must be the child's birth state.
Step 2: File the Custody Petition
File a Petition for Custody (Form 450) with the Delaware Family Court in the county where the child resides. The filing fee is $100 total ($90 base fee plus $10 court security assessment) as of March 2026. Fee waivers are available through an Affidavit in Support of Application to Proceed In Forma Pauperis for parents demonstrating financial hardship.
Step 3: Complete Required Disclosure
Both parents must complete the Custody, Visitation and Guardianship Disclosure Report (Form 364) before attending mediation. This form requires detailed information about:
- The child's current living situation
- Each parent's proposed custody arrangement
- The child's educational and medical needs
- Any history of domestic violence or abuse
Step 4: Attend Mandatory Mediation
Delaware requires mediation in all custody cases except when domestic violence protection orders prohibit contact between the parties. At mediation, a court-employed mediator assists parents in reaching a custody agreement. If parents reach agreement, the mediator prepares a consent order for judicial approval. If mediation fails, the case proceeds to a contested hearing.
Step 5: Complete Parenting Education
All parents in Delaware custody cases must complete a court-approved Parent Education Class before the custody hearing. Failure to complete this requirement can result in case dismissal. The course covers co-parenting communication, child development, and the effects of parental conflict on children.
Step 6: Contested Hearing or Trial
If mediation does not resolve all issues, the court schedules a custody hearing before a Family Court judge. Both parents present evidence regarding the eight best interest factors. The court may appoint a Guardian ad Litem (GAL) to investigate the family situation and recommend custody arrangements that serve the child's best interests.
Modifying Custody Orders in Delaware
Delaware imposes specific requirements for modifying existing custody orders under 13 Del.C. § 729. The modification standard depends on the type of original order and how much time has passed since entry.
Consent Orders and Interim Orders
Parents can modify consent orders, interim orders, or written custody agreements at any time by demonstrating that modification serves the child's best interests. No showing of changed circumstances is required—the court applies the standard best interests analysis under 13 Del.C. § 722.
Court Orders After Contested Hearing
Modifying a custody order entered after a full hearing requires meeting heightened standards:
- Within 2 years of the order: The parent must prove that continuing enforcement would endanger the child's physical health or significantly impair the child's emotional development
- After 2 years: The court weighs whether modification benefits outweigh potential harm to the child from disruption, and considers each parent's compliance with existing orders
Visitation Modifications
Visitation schedules can be modified at any time based on the child's best interests, regardless of when the original order was entered. Parents do not need to prove endangerment or substantial change in circumstances to modify visitation-only provisions.
Enforcement and Sanctions
Delaware provides strong enforcement mechanisms when a parent violates custody or visitation orders. Under 13 Del.C. § 728(c), the court must order a violating parent to pay the other parent's costs and reasonable attorney fees when violations are proven.
Enforceable violations include:
- Denying court-ordered visitation
- Failing to return the child at scheduled times
- Interfering with phone or mail contact
- Making unilateral major decisions without required consultation
- Relocating without proper notice or court approval
Repeated violations may result in modification of custody arrangements, contempt of court findings, or criminal charges for custodial interference.
Frequently Asked Questions About Delaware Custody
Does Delaware prefer mothers or fathers in custody decisions?
Delaware law explicitly prohibits courts from preferring either parent based on gender. Under 13 Del.C. § 722(a), the court shall not presume that a parent, because of such parent's sex, is better qualified to act as custodian. Both mothers and fathers receive equal consideration under the eight best interest factors, and custody decisions must be based solely on which arrangement serves the child's welfare.
What age can a child choose which parent to live with in Delaware?
Delaware has no statutory age at which a child can choose their custodial parent. Courts consider the child's wishes as one of eight best interest factors, giving greater weight to preferences expressed by mature children—typically ages 12 and older. However, the child's preference is never controlling, and judges may disregard preferences that appear coached or contrary to the child's actual best interests.
How much does a custody case cost in Delaware?
The filing fee for a custody petition is $100 ($90 base plus $10 security fee) as of March 2026. Additional costs include service of process ($30 for the first document, $10 for additional documents), parenting education class fees, and attorney fees if you hire legal representation. Contested custody cases with attorney representation typically cost $3,000 to $15,000 depending on complexity and duration.
Can I get full custody if the other parent has a criminal record?
A criminal record does not automatically disqualify a parent from custody in Delaware. Courts evaluate whether the criminal history affects the parent's ability to provide safe, appropriate care. Convictions for violent crimes, child abuse, sexual offenses, or serious drug offenses weigh heavily against custody awards. Sex offenders and parents convicted of murder cannot receive visitation in correctional facilities under 13 Del.C. § 728(d).
How long does a custody case take in Delaware?
Uncontested custody cases where parents reach agreement at mediation can conclude within 60 to 90 days. Contested cases requiring a full hearing typically take 6 to 12 months from filing to final order. Complex cases involving Guardian ad Litem appointments, custody evaluations, or domestic violence allegations may take 12 to 18 months.
Can grandparents get custody in Delaware?
Delaware permits grandparents and other third parties to petition for custody under limited circumstances. Third-party custody petitions require demonstrating that both parents are unfit or that the child's welfare would be substantially harmed by placement with either parent. Grandparents may also seek visitation rights under 13 Del.C. § 2412 when specific statutory conditions are met.
What is a Guardian ad Litem in Delaware custody cases?
A Guardian ad Litem (GAL) is a court-appointed attorney or trained advocate who represents the child's best interests in custody proceedings. The GAL investigates both households, interviews parents and children, reviews relevant records, and submits recommendations to the court. Delaware courts frequently appoint GALs in contested custody cases, high-conflict situations, or cases involving abuse allegations.
Can I relocate with my child after getting custody in Delaware?
Relocation with a child requires either written consent from the other parent or court approval. Delaware courts evaluate proposed relocations under the best interests standard, considering the move's impact on the child's relationship with the non-relocating parent, educational continuity, and community connections. Parents must provide reasonable notice of intended relocation and may face sanctions for relocating without authorization.
How does domestic violence affect custody in Delaware?
Domestic violence creates a rebuttable presumption against awarding custody to the perpetrator under 13 Del.C. § 705A. Courts presume that perpetrators of domestic violence should not receive sole or joint custody and that children should not primarily reside with such parents. Perpetrators can overcome this presumption only by completing intervention programs, demonstrating no further violence, and completing any court-ordered substance abuse treatment.
What happens if we cannot agree at mediation?
When mediation fails to produce a complete custody agreement, the mediator may recommend a temporary contact schedule to remain in effect until the court hearing. The case is then assigned to a Family Court judge for a contested hearing where both parents present evidence regarding the eight best interest factors. The judge issues a custody order after considering all testimony, documentation, and any Guardian ad Litem recommendations.