Custody

There are different standards for modifying custody/visitation orders, depending on many factors, as we explain below.

1) An order concerning visitation can be modified at any time as long as it is in the best interests of the child and consistent with the child’s best interests and maturity.¹  Any visitation schedule made in Delaware is supposed to be designed to allow and encourage the child to have frequent and meaningful contact with both parents unless the judge finds (after a hearing) that contact with one parent would endanger the child’s physical health or significantly harm his/her emotional development.²

2) An order regarding custody can be modified at any time according to the best interests of the child if it meets one of these requirements:

• it was issued by consent of all parties;
• it is an interim order; or
• it is a written agreement between the parties concerning the legal custody of a child or his/her residence.³

3) An order concerning the legal custody of a child or his/her primary residence that was issued by the judge after a full hearing (trial) on the merits may be modified only as follows:

• If the application for modification is filed within 2 years after the court’s most recent order concerning these matters, the judge will not modify the order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child’s physical health or significantly harm his/her emotional development.
• If the application for modification is filed more than 2 years after the judge’s most recent order concerning these matters, the judge can modify its prior order after considering:
  • whether or not any harm is likely to come to the child if the order is changed and, if so, whether that harm is likely to be outweighed by the advantages to the child of the modification requested;
  • whether or not each parent has obeyed the current order, including providing to the other parent (if requested) information concerning the child’s progress in school, medical treatment, significant developments in the child’s life, school activities and conferences, special religious events and other activities in which both parents may wish to participate’ and allowing the child to speak to the other parent by phone, mail, etc.;
  • if, during the current order, the parent was punished by the court for disobeying the order; and
  • if changing the custody order is in the best interests of the child.⁴

¹ 13 Del. C. §§ 729(a); 728(a)
² 13 Del. C. § 728(a)
³ 13 Del. C. § 729(b)
⁴ 13 Del. C. §§ 729(c); 727(a)