There are many reasons people choose not to get a custody order from a judge. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.

However, getting a custody order from a judge can give you certain legal rights. Getting a custody order can give you:

• the right to make decisions about your child
• the right to have your child live with you.

Without a custody order, both parents have equal rights and responsibilities for the child or children.¹

Some people think they should file for custody so they can get child support.  While custody and child support are related, you do not necessarily need a custody order to get child support.

Also, a custody order will not automatically give you child support. See Can I get support for my children? for more details. As with all custody issues, we recommend that you talk to a lawyer about this.

¹ 13 Del. Code § 701

Mediation is a way of resolving a legal dispute where a neutral third party (mediator) listens to both parties and tries to help you reach a solution before going before a judge. Mediation is not ordered in any child custody, visitation or support case where one of the parties has committed an act of domestic violence against another party, or where one party has been ordered to have no contact with the other party.¹ If there has been no domestic violence, then Delaware courts usually make the parties go to mediation in all custody, visitation, and support cases.

¹ 13 Del. C. § 711A

Delaware, like many states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which we explain here.

Under the UCCJEA, you can only file for custody in the “home state” of the child. (There are exceptions to the “home state” rule – see below.)

The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than six months old, the “home state” is the state where the child has lived from birth.

If you and your child recently moved to a new state, you cannot file for custody in that new state until you have lived there for the amount of time that the law describes. Until then, the other parent can start a custody action in the state that your children most recently lived in for at least six months.

Example: If a family lives in state A for one year, state A is the home state. If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state.¹ As with all custody issues, we recommend that you talk to a lawyer about this.

¹ 13 Del. C. § 1920

In Delaware, a judge may award both parents joint legal custody. This means that both parents have equal rights and responsibilities for major decisions concerning the child, including:

• the education of the child,
• health care, and
• religious training

These rights cannot be restricted unless the judge finds that the child’s contact with the parent puts the child’s health or emotional development in danger.¹

The judge may choose one parent to have sole power to make certain decisions while both parents have equal rights and responsibilities for other decisions.

Even though both parents may share legal custody, only one parent will be awarded primary residency. This means that the child will live with one parent full-time while the other parent may be granted the right to visit the child.²

¹ 13 Del. C. § 728
² 13 Del. C. § 728

Yes. A custody order is about the right to make decisions about the child’s life or physically have the child. Visitation rights are given to the parent who the child does not live with full time. Visitation allows that parent to visit the child and to be told about decisions made concerning the child. This parent will have scheduled times during which he or she can visit the child.¹

¹ 13 Del. C. § 728

There is a “rebuttable presumption” that a judge will not award a “perpetrator of domestic violence” any of the following:

• sole custody;
• joint custody; and
• primary residence for the child.¹

A rebuttable presumption means that the judge will assume (presume) that the abusive parent should not get custody or primary residence but the abusive parent can present evidence to change the judge’s mind (overcome the rebuttable presumption). If the rebuttable presumption is overcome, the judge can award that parent custody or primary residence. The abusive parent can overcome the rebuttable presumption if s/he can prove either:

1. There have been no further acts of domestic violence and the perpetrator of domestic violence has done all of the following:
   • successfully completed a program of evaluation and counseling designed specifically for perpetrators of family violence and conducted by a public or private agency or a certified mental health professional;
   • successfully completed a program of alcohol or drug abuse counseling if the judge determines that such counseling is appropriate; and
   • proven to the judge that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child; or
2. The judge determines that there are “extraordinary circumstances,” such as evidence demonstrating that no significant risk of future violence against any adult or minor child living in the home or any other family member, including any ex-spouse, exists.²

A perpetuator of domestic violence means someone who has been convicted of committing any of the following crimes against the child at issue in a custody or visitation proceeding, against you (the other parent of the child), or against any other adult or minor child living in the home:

• any felony level offense; or
• any of the following misdemeanor level offenses:
  • assault in the third degree;
  • reckless endangering in the second degree;
  • reckless burning or exploding;
  • unlawful imprisonment in the second degree;
  • unlawful sexual conduct in the third degree;
  • criminal contempt of a family court protective order based on an assault or other physical abuse, threat of assault or other physical abuse, or any other actions placing the petitioner in immediate risk or fear of bodily harm;
  • child abuse in the third degree.³

¹ 13 Del. C. § 705A(a), (b)
² 13 Del. C. § 705A(c)
³ 13 Del. C. § 703A(b)

A non-parent can ask to be appointed as a legal guardian if the child is being neglected. The court must find that it is in the best interest of the child that he/she should have a guardian appointed.¹ Being legal guardian is similar to having custody, but is not exactly the same thing since the parents still have some rights and responsibilities for the child.

A blood relative, foster parent or parent may also request permanent guardianship over a child in certain situations.² This is more like establishing custody, but is legally different.

“Custody” in Delaware is for parents. Parents include birth parents, adoptive parents, and “de facto” parents, which means any person who has acted like a parent to the child, with the consent of the child’s actual parents.³

¹ 13 Del. C. § 2330
² 13 Del. C. § 2353
³ 13 Del. C. § 8-201

In awarding custody of a child, the judge will look at many factors to decide what is in the best interest of the child. These factors include:

• what custody and living arrangements the child’s parent(s) want;
• what custody and living arrangements the child wants;
• the interaction and relationship the child has with his or her parents, grandparents, siblings, the husband or wife of either parent, any other residents of the household or persons who may significantly affect the child’s best interest;
• the child’s adjustment to his or her home, school, and community;
• the mental and physical health of all individuals involved;
• past and present compliance by both parents with their rights and responsibilities to support and care to their child;
• evidence of domestic violence; and
• the criminal history of either parent and anyone they live with, including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.¹

If the judge thinks it is necessary, the order can include a request that the police assist a parent in getting possession of a child. To do so, the police officer can enter private property to get the child.²

¹ 13 Del. C. § 722
² 13 Del. C. § 727(e)

In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.”  Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.  For more informaiton about changing a final custody order, go to our Changing a final custody order section on our general custody page.

This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of local resources, please see our DE Finding a Lawyer page under the Places that Help tab on the top of this page.

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)

A parent that does not have custody can receive records or information about their child on topics including their education, medical treatment, school activities, etc.¹

¹ 13 Del. C. § 727