Delaware Child Custody Laws: How Custody Is Decided

If you are facing a custody dispute in Delaware, the first thing to know is that Delaware's Family Court makes every custody decision based on one standard: the best interests of the child. No parent starts with an advantage because of their sex. The court works through a specific list of factors set out in state law to reach a decision that fits the child's actual situation.

How Delaware Custody Cases Start

A custody proceeding begins when a parent files a petition in Delaware's Family Court in the county where the child permanently lives or is currently found. (13 Del. C. § 721.) If both parents agree on terms, the court can enter a consent order reflecting that agreement. If they disagree, a judge will hold a hearing and decide.

The Two Types of Custody

Delaware law separates custody into two concepts you will hear throughout your case:

• Legal custody — who has decision-making authority over major choices in the child's life, such as education, medical care, and religious upbringing.
• Physical custody (residential arrangement) — where the child primarily lives and the schedule for time with each parent.

The court may award joint legal custody or sole legal custody to one parent. (13 Del. C. § 727.) Importantly, regardless of whether custody is joint or sole, each parent retains the right to request and receive material information about the child's school, medical treatment, and significant developments. Each parent and the child also have a right to reasonable access by telephone or mail, unless that contact would endanger the child's physical health or significantly impair the child's emotional development. (13 Del. C. § 727.)

The Eight Factors Courts Weigh

When deciding what arrangement serves the child's best interests, Delaware's Family Court weighs eight factors. (13 Del. C. § 722.)

1. Parents' wishes — what each parent is asking for and why.
2. Child's wishes — the child's own preferences, given appropriate weight based on maturity.
3. The child's relationships — the quality of the child's relationships with each parent, grandparents, siblings, and others in the household.
4. Adjustment to home, school, and community — how well the child has settled into their current surroundings.
5. Mental and physical health — the mental and physical health of all people involved, including both parents.
6. Past compliance with parental rights and responsibilities — how each parent has actually performed their parenting duties and respected the other parent's rights.
7. Evidence of domestic violence — any history of domestic violence in the household.
8. Criminal history — criminal history of any party or household resident.

No single factor is automatically decisive; the court considers all of them together. Critically, Delaware law contains no presumption in favor of either parent based on sex — mothers and fathers start on equal footing. (13 Del. C. § 722.)

Residential Schedules and Visitation

The court will establish which parent the child primarily lives with and set a visitation schedule for the other parent. Delaware law specifically requires the court to encourage frequent and meaningful contact with both parents, unless that contact would endanger the child or significantly impair the child's emotional development. (13 Del. C. § 728.)

If a parent unreasonably refuses or blocks the other parent's court-ordered visitation, Delaware courts can impose serious consequences. Available sanctions include makeup parenting time, temporary custody of up to 30 days, surcharges, fines, and contempt of court. (13 Del. C. § 728.) Do not withhold a child from the other parent simply because you are in a dispute — doing so can harm your standing with the court significantly.

Modifying a Custody Order

Custody orders are not permanent. Life changes, and Delaware law provides a path to modify an existing order. However, the rules differ depending on when and how the original order was entered. (13 Del. C. § 729.)

Time-sensitive rule: If the original order resulted from a contested hearing, you generally cannot ask the court to modify it within the first two years unless you can show that continuing the current order may endanger the child's physical health or significantly impair the child's emotional development. This is a high bar intended to give custody arrangements time to stabilize after a contested case.

After two years, the standard shifts: the court reweighs the child's best interests, considers the benefit of the proposed change versus the harm from disrupting the child's life, and looks at how each parent has complied with the existing order.

Consent orders, interim orders, and written agreements follow a different rule — they can be modified at any time if modification is in the child's best interests. (13 Del. C. § 729.)

Relocating With a Child

If you want to move with your child and the proposed relocation would last 60 days or more, and it would either take the child outside Delaware or materially affect the current custody or residential arrangement, the court must decide the matter. The court applies a set of best-interests relocation factors specific to that decision. (13 Del. C. § 734.) Note that the 60-day threshold refers to the duration of the proposed move, not a notice period. When in doubt about whether your planned move triggers this requirement, confirm with your Delaware Family Court.

Never relocate with a child during an open custody case without addressing the issue in court. Doing so can result in the court ordering the child's return and could seriously damage your credibility with the judge.

Jurisdiction: Which State's Court Has Authority

Delaware has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Title 13, Chapter 19. (13 Del. C. Chapter 19.) The UCCJEA — now adopted in 49 states and the District of Columbia — determines which state has jurisdiction to enter and modify a custody order based on where the child has lived. Generally, a child's "home state" has priority.

At the federal level, the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) requires every state to honor and enforce custody orders made by another state under the UCCJEA framework. It prevents a parent from re-litigating custody in a different state — courts elsewhere must give full faith and credit to Delaware's orders as long as Delaware retains jurisdiction, and vice versa.

Special Situations

Active-Duty Military Parents

If a parent's military duties make it impossible to attend court proceedings, the Servicemembers Civil Relief Act (50 U.S.C. § 3932) allows an active-duty servicemember to request a stay — a pause — of at least 90 days in custody, divorce, or support proceedings. This protects deployed parents from having a case decided without them.

Domestic Violence and Protection Orders

Evidence of domestic violence is one of the eight best-interests factors a Delaware court must consider. (13 Del. C. § 722.) If you already have a protection order from another state, federal law under the Violence Against Women Act (18 U.S.C. § 2265) makes it enforceable in Delaware without re-filing.

Native American Children

If a child is an enrolled member of, or eligible for enrollment in, a federally recognized tribe, the Indian Child Welfare Act (25 U.S.C. §§ 1901–1923) may apply. ICWA imposes heightened procedural protections and gives the child's tribe a right to notice and participation in certain proceedings involving that child.

International Cases

If one parent has taken a child out of the country — or is threatening to — the International Child Abduction Remedies Act (22 U.S.C. § 9001 et seq.), which implements the Hague Convention on international child abduction, provides a federal remedy to seek the child's return. This law focuses on returning the child to their country of habitual residence; it does not decide the underlying custody dispute.

What You Can Do in Delaware

1. File in the right county. A custody petition goes to the Family Court in the county where your child permanently lives or is currently located. (13 Del. C. § 721.) Contact that court's clerk's office to get current forms and filing instructions.
2. Document the eight factors. Start keeping a written record of your parenting involvement — school pickups, medical appointments, homework help — and note any concerns about the other parent's conduct. Courts look at what each parent has actually done over time.
3. Do not deny court-ordered visitation. Unless a court has specifically authorized it, refusing the other parent's court-ordered time can result in sanctions including makeup time, temporary loss of custody, fines, and contempt. (13 Del. C. § 728.)
4. Address relocation before you move. If you are considering a move that could affect custody, raise it in court first. A move lasting 60 days or more that takes the child outside Delaware or materially changes the arrangement requires court approval. (13 Del. C. § 734.)
5. Know the modification timeline. If your order came from a contested hearing, the two-year rule limits when you can seek a change. Track your order's date and understand which standard applies. (13 Del. C. § 729.)
6. Verify current procedures with your court. Filing fees, required forms, and hearing wait times vary and can change. Always confirm current procedural requirements directly with your Delaware Family Court clerk's office.

This article provides general legal information only, not legal advice, and does not create an attorney-client relationship. For guidance specific to your situation, consult a licensed Delaware family law attorney.