Custody in Delaware.

Decisions against where the child lives

Sec. 722(a): 'The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child.' Sec. 728(a) then says that whether legal custody is joint or sole, the court determines 'with which parent the child shall primarily reside and a schedule of visitation with the other parent.' Sec. 727(a) guarantees both parents – joint or sole legal custody alike – the right to receive on request all material information about school, medical treatment, significant developments and activities, and reasonable telephone or mail access to the child. The baseline is sec. 701(a): 'The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other.'

What the judge must weigh

1. The wishes of the child's parent or parents as to custody and residential arrangements
2. The wishes of the child as to the child's custodian or custodians and residential arrangements
3. The interaction and interrelationship of the child with the child's parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent, any other residents of the household, or persons who may significantly affect the child's best interests
4. The child's adjustment to home, school and community
5. The mental and physical health of all individuals involved
6. Past and present compliance by both parents with their rights and responsibilities to their child under 13 Del. C. sec. 701
7. Evidence of domestic violence as provided for in Chapter 7A of Title 13
8. The criminal history of any party or any other resident of the household, including pleas of guilty or no contest or a conviction of a criminal offense

What the child wants

No age is set. Sec. 722(a)(2) makes 'the wishes of the child as to such child's custodian or custodians and residential arrangements' one of the eight best-interest factors. Sec. 724(a) lets the judge interview the child in chambers and, at a party's request, requires a record of the interview to be made part of the case file. Sec. 724(c) lets the court interview a child on the record about any factual statements in the case, lets parties submit questions to be asked, and entitles all parties to review the recorded interview. Sec. 724(d) even allows a child's out-of-court statements into evidence in defined circumstances. So a Delaware child's voice can carry real weight – but the judge still decides.

Where there has been violence or abuse

13 Del. C. ch. 7A, the Child Protection From Domestic Violence Act. Sec. 705A(a)-(b): rebuttable presumptions that no 'perpetrator of domestic violence' shall be awarded sole or joint custody, and that no child shall primarily reside with one. 'Perpetrator of domestic violence' is defined narrowly in sec. 703A(b) as someone convicted of a listed offense (any felony, assault third degree, reckless endangering second degree, unlawful imprisonment second degree, unlawful sexual contact third degree, criminal contempt of a protective order based on assault or threat, child abuse fourth degree, and others) against the child, the other parent, or an adult or minor in the home. Sec. 705A(c): the presumption is overcome only if there have been no further acts and the perpetrator completed a domestic-violence evaluation and counseling program, completed substance-abuse counseling if the court finds it appropriate, and shows custody is in the child's best interests – or the judge finds extraordinary circumstances. Sec. 705A(e) adds an expert-testimony requirement where a child suffered death or near-death injuries. Sec. 706A(a): any past or present act of domestic violence, whether or not committed in front of the child, is a relevant factor the court must consider; sec. 706A(b) requires specific written findings if custody or primary residence goes to a party despite evidence of domestic violence. Sec. 704A: fleeing domestic violence and temporarily leaving the child behind is not evidence of abandonment.

The parenting plan

Delaware does not require a written 'parenting plan' by statute. What it requires is a contact schedule inside the order: sec. 727(c), 'Any custody order entered by the Court shall include a contact schedule by the child with both parents which shall control absent parental modification by written agreement.' Practically, the paperwork that matters is the Petition for Custody (Family Court Form 345) and the Custody, Visitation and Guardianship Disclosure Report (Form 364), which each party must complete and bring to mediation – or, if mediation is bypassed, exchange with the other side and file with the court at least 7 calendar days before the first court appearance. Both parents are also ordered to take a Parenting Education Class. Forms and instructions: https://courts.delaware.gov/family/custody/

Mediation

Yes, in practice. Delaware Family Court's published custody procedure is that once positive service of the Petition for Custody is returned, 'the case is normally referred to mediation.' If there has been a finding of domestic violence, or a no-contact order is currently in effect between the parties, there will not be a mediation hearing unless the victim's attorney requests one and is present; the petition then goes straight to a judge. A motion to modify custody is likewise referred back to mediation unless bypassed for the same reasons. If the parents reach agreement at mediation, a consent order is signed on the spot; if not, the mediator may recommend a temporary contact schedule pending the hearing. Source: Delaware Courts, https://courts.delaware.gov/family/custody/

If the court appoints someone to look into it

Delaware repealed its old custody-investigation statute (sec. 725, repealed 2004). What remains: sec. 721(c) – 'The Court may, in the interest of the child, appoint an attorney to represent the child in the proceedings. A fee for an attorney so appointed shall be allowed as part of the costs of the proceeding.' Sec. 724(b) – the court may seek the advice of professional personnel whether or not employed by the court; the advice is generally confidential and sealed but is released to counsel and parties for good cause, and counsel may cross-examine the professional. Sec. 731 lets the court order one party to pay all or part of another party's costs and attorney's fees after weighing the parties' financial resources and the results obtained.

Changing the order

13 Del. C. sec. 729, and the answer depends on what kind of order you have. Visitation may be modified at any time if the child's best interests would be served (sec. 729(a)). A consent order, an interim order, or a written agreement about legal custody or residence may also be modified at any time under the ordinary sec. 722 best-interest standard (sec. 729(b)). But an order entered after a full hearing on the merits is protected: sec. 729(c)(1) – if you file within two years of that order, 'the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair such child's emotional development.' After two years, sec. 729(c)(2) applies a three-part test: whether harm from a change is outweighed by the advantages, each parent's compliance with prior orders and sec. 727 duties (including any sanctions imposed under sec. 728(b)), and the sec. 722 factors. Sec. 730 requires a verified petition setting out supporting facts.

If you were never married

Delaware starts from equality: sec. 701(a) makes the father and mother 'joint natural guardians' with equal powers and no presumption of superiority, and sec. 721(a) lets 'a parent' file for custody without regard to marriage. The catch is being a legal parent in the first place. A father who was not married to the mother must have parentage established – by voluntary acknowledgment or a court adjudication – under Title 13, Chapter 8, Delaware's Uniform Parentage Act. Delaware has enacted a rewritten Chapter 8 that takes effect December 6, 2026, so the parentage procedures are in transition right now.