Delaware Custody Guidelines

Child Custody in Delaware

Decisions on how your child’s time will be divided between you and the other parent can be very difficult, frustrating, and even frightening. No matter how challenging your child custody dispute might be for you, it is probably even more difficult for your child.

That is why it is important to maintain focus on achieving a final result that is in the best interests of your child. Sometimes obtaining such is possible with just a little give and take by both parents until a written custody agreement can be reached. Other times, unfortunately, obtaining such a result is only possible by going to court.

Parents who want to file for custody in Delaware must meet certain legal requirements. The child must have resided consecutively in Delaware for six months or be born in Delaware if they are less than six months old. Courts will only make a decision on custody when the parents are living apart from each other. A knowledgeable child custody attorney can provide further guidance when it comes to filing for custody in a Delaware court.

There are several different types of custody:

  • Sole legal custody– A parent with sole custody makes all major decisions for the child on their own without being required to consult the other parent. This includes decisions about religion, school, daycare, and medical care. However, the other parent must be informed when a decision has been made.
  • Joint legal custody– Major decisions are discussed and a joint agreement must be reached before parenting decisions are made.
  • Physical or residential custody– Refers to where the child is living. If primary custody is with one of the parents, a visitation schedule generally needs to be established with the non-residential parent.

Child custody cases can become hostile. For that reason, a family attorney will focus on making sure you know the best way to respond to the other party without losing favor in court. They will set reasonable expectations for my child custody clients, making sure they understand what they are entitled to as well as what the other side is entitled to.

Your attorney will walk through the unique circumstances of your case to determine what is in the best interest of your children; including contacting teachers, doctors, and counselors to testify on your behalf if necessary. They will discuss with you the possibility of hiring a psychologist to conduct a custodial evaluation. This could be the edge you need and the difference between winning and losing your custody or visitation case.

Physical Custody

In Delaware, physical custody (Del. Code 13, § 727) refers to the primary residence of a child. This is also referred to as residential arrangements and includes all the responsibilities of day-to-day care for the child, such as bathing, disciplining, and providing meals.

When a parent has sole physical custody, the child lives with that parent, usually known as the custodial parent, while the noncustodial parent may have visitation. Alternatively, parents may share residential arrangements, more commonly known as joint physical custody. This does not necessarily mean that the child will spend an equal amount of time with each parent.

As it is generally more practical, joint residential arrangements work best when both parents are located close to one another. This can reduce problems associated with transportation for after-school activities or sports.

Legal Custody

Legal custody in Delaware is an arrangement that grants both parents the right to make decisions about their child’s upbringing. In the case of sole legal custody, one parent is solely responsible for these decisions; whereas joint legal custody allows both parents to be involved in decision-making processes. Joint custody is considered preferable as it provides for a more equal and active participation from each parent.

Both joint and sole legal custodians are entitled to be apprised of any updates relating to their child’s school progress, medical treatments, religious events, and other activities that either or both parents may want to take part in. Ultimately, legal custody arrangements are designed to ensure that both parents are able to remain actively involved in their child’s life.

Joint Legal Custody in Delaware

Delaware courts typically favor granting joint legal custody to both parents, ensuring the best interests of the child are met. This practice allows both parents the right to make legal decisions regarding their child and provides stability for the child. However, issues may arise when a dispute between the two parents must be resolved, or if one parent makes decisions without the knowledge of the other.

  • Advantages of Joint Legal Custody – Joint legal custody gives both parents an active role in making important decisions about their child’s health care, religious upbringing, and education. This helps to ensure that the child is consistently surrounded by both parents and they will know that they are equally concerned with matters that impact them.
  • Disadvantages of Joint Legal Custody – If the parents are unable to agree on a particular decision, the court may have to intervene to settle any disputed matters. Additionally, if one parent makes a decision without informing the other parent, they risk being held in contempt of court which can lead to disruptive penalties and disrupt the stability established by joint legal custody.

Shared Residency

Shared residency is a custody arrangement in which both parents are legally entitled to spend an equal amount of time with their child. This type of custodial agreement puts the best interests of the child first and gives them the security of knowing they won’t be cut off from either parent.

What Courts Consider when Awarding Joint Physical Custody

When deciding whether or not to award joint physical custody, courts take into consideration how such an arrangement would benefit the child. Factors such as financial stability, emotional security, and educational continuity are all considered by the court when determining what’s in the best interests of the child.

Issues That Can Affect Shared Residency Agreements

In order for shared residency agreements to work effectively, it is essential that both parents get along reasonably well. Constant bickering and arguing can have a disruptive effect on the child, potentially leading to one parent petitioning the court to amend the custody agreement. This can create added stress and instability for the child, making it important for parents to maintain a degree of civility and work together in their child’s best interests.

Basic Delaware Divorce Laws & Statutes

There are laws and legal procedures associated with divorce and all elements of family law in Delaware. A Delaware divorce will only be allowed by the courts once you have been separated for at least 6 months. This is commonly referred to as the ‘cooling-off’ period. The only exception to this is if you are filing for divorce due to any type of abuse whether emotional, mental, or physical.

Other types of misconduct may include infidelity and desertion/abandonment. It is important to note that filing for divorce on these grounds means that you will have to prove abuse before the divorce will be granted. If you can prove this then there is no time frame regarding legal separation prior to divorce.

As many times a divorce is a direct result of financial strain couples cannot afford to live separately during the separation period. According to Delaware law, you can be legally separated while living under the same roof. During this time you must maintain separate bedrooms and cannot have sexual relations.

In order for you or your spouse to file for divorce you or your spouse must have resided in Delaware for at least 6 months immediately prior to filing.

Delaware Divorce Laws Involving Children

Children can be severely impacted by divorce or the dissolution of a marriage. The scars they bear emotionally can be worn for life. Many times the trauma a child associates with a divorce happens for years after the divorce is final, especially if there is dysfunction between the parents such as arguing, fighting, manipulating, and using the children as leverage.

Divorce Laws Involving Delaware Children

There are steps parents can take in order to minimize the damage done to a child during a divorce. Delaware law mandates that parents enroll in, and successfully complete, parenting education courses. These courses are offered throughout the state and I can help you enroll and get this process started. The courts will not approve or grant your divorce until both parents have completed the course.

Delaware Child Custody Issues

Important questions must be considered when determining how to divide or share a child’s time in a custody arrangement.

  1. How willing is the other parent to honor frequent and continuing contact by both parents?
  2. Has there been abusive contact by either of the parents in the past?
  3. Does one parent offer more stability for the children during this difficult transition?
  4. Are both parents willing and able to share in important decisions involving the children — and actually come to an agreement?

The Delaware Family Court is moving away from the archaic notion that a child should reside primarily with one parent while visiting the other parent only on alternate weekends.  More and more frequently, cases are being resolved following a shared parenting schedule as this can often be in the best interests of the child.

Whether yours is a true shared-time custody arrangement or one where your child spends more time with one parent than he or she does with the other, your child should be afforded the opportunity to be parented, nurtured, and guided by both parents.  A Delaware family attorney can help you negotiate a child custody and visitation agreement that serves the best interests of your child and preserves your interests as a parent.

What Rights Do I Have When Going Through A Divorce

Many Delaware residents are not sure what their rights are when trying to get through difficult family law issues. These can be some of the most trying times you will ever endure. This holds true for the adults as well as any children involved and I will explain your rights to you and fight to protect them. While divorces that do not involve lawyers happen they are not the norm.

Odds are your soon-to-be former spouse will enlist the help of a Delaware family law lawyer and that can give them an unfair advantage during the divorce process and proceedings. It can also impact the ultimate outcome of your divorce including financial stability, custody, and child support orders. You absolutely have the right to be treated fairly and have your interests and your children’s interests looked after.

Parenting Agreements in Delaware

Parents have the option of agreeing on child custody and visitation issues between themselves. To make their agreement part of a court order, they need to put all the details into a parenting plan and submit it to the court. Judges will typically approve such agreements if they are seen as serving the best interests of the child. A more detailed parenting plan is usually better in order to reduce possible misunderstandings and future disputes. This type of plan may include:

Primary Residence

The home that will be considered the primary residence for the child (especially important when a joint physical custody arrangement exists and a school district needs proof of residency).

Visitation Schedule

Where the child will spend vacations, school breaks, holidays, and birthdays, as well as how any changes to the schedule will be managed (e.g., due to illness).

Communication Methods

How parents will communicate with each other regarding their children (e.g., via email, text, or phone), especially if there is hostility between them.

Staying in Touch

How often and by what methods one parent can stay in touch with the child while they are with the other parent.

Drop-offs & Pick-ups

Times and locations for visitation drop-offs and pick-ups.


Who will be responsible for transporting the child to and from school, extracurricular activities, and visitation exchanges.


Whether one parent has the right of first refusal should the other parent need temporary childcare.


What happens if one parent needs to relocate.


How parents will resolve future disagreements regarding the parenting plan (this may include using mediation or another dispute resolution method rather than returning straight to court).

When looking for suggestions for what to include in a parenting plan, searching online is recommended. It is also possible that for those who qualify to file for divorce online, questionnaires may be used to assist in creating a parenting agreement.

Domestic Violence and Child Custody in Delaware

Presumption Against Abusers: State law (13 Del. Code § 705B) presumes that any parent who has committed domestic violence may not have sole or joint custody of a child, and the child may not primarily live with that parent.

Exceptions to the Presumption: It is possible, however, for an abusive parent to overcome this presumption if they have taken certain steps to prove that they are fit for custody. These can include being free from further acts of violence, participating in specifically designed programs for perpetrators of family violence, completing alcohol or drug abuse counseling, if applicable, and demonstrating that having some custodial or residential responsibility would be beneficial for the child. (13 Del. Code § 705A (2023).)

Visitation Conditions: If visitation rights are granted to an abusive parent, it must be conditioned by the judge in such a way that will protect the child from further abuse. This could include orders for supervised visitation at a court-approved facility by trained personnel.

FAQs on Custody Guidelines in Delaware

What are the factors for child custody in Delaware?

In Delaware, the determining factor for child custody is considered to be the “best interests of the child”. This includes but is not limited to the parents’ ability to care for the child, their mental and physical health, the child’s preference if they are of a certain age, any history of domestic violence, and both parents’ moral character.

What is the most common joint custody arrangement?

The most typical joint custody arrangement is known as 50-50 shared parenting. This means that each parent has equal rights and responsibilities towards the children, including decision-making. Each parent has an equal amount of time with the children, typically alternating between weeks or months at a time.

How hard is it to get full custody in Delaware?

It can be very difficult to get full custody in Delaware, as it is generally assumed that it’s best for a child to have contact with both parents. In order for one parent to obtain full custody, there must be clear evidence of neglect or abuse on the part of the other parent. If the court determines that it’s not in the best interest of the child for them to spend significant time with one parent, then full custody may be awarded.

How do you deal with emotionally split custody?

Emotionally split custody can be difficult for a family to manage. Parents should strive to communicate regularly and provide support for each other in order to minimize stress and confusion. It’s also important for parents to make sure that they are accommodating each other’s schedules when it comes to spending time with the children.

What are the disadvantages of joint custody?

Joint custody can result in conflict between parents due to disagreements about parenting decisions, a lack of flexibility in scheduling, and challenges related to splitting expenses. Additionally, one or both parents may struggle with feeling guilty about having less time with their children.

What is the best split custody schedule?

Every family is different and what works best for one family may not work for another. However, some common split custody schedules include alternating 2-day or 4-day visits; alternating week-long visits; or alternating weekend visits during which each parent gets Friday through Sunday. It’s important for parents to consider the needs of their children when deciding on a schedule that will work best.

What is considered abandonment of a child in Delaware?

Abandonment of a child is defined as when either parent deserts, abandons, or willfully forsakes their legal obligation to take care of their child without attempting to make adequate arrangements in order for someone else to do so. Abandonment of a child is punishable by law.

What are grandparents’ rights in Delaware?

Grandparents in Delaware have the right to seek visitation either through informal arrangements or by filing a petition with the court. Generally speaking, grandparents need to prove that it is in their grandchild’s best interests to allow them visitation rights. Read our full post on this.

What is the least common form of custody?

The least common form of custody is sole legal custody – where only one parent has the right to make major decisions regarding the welfare of the child such as schooling, medical care, and religion. Sole legal custody is only granted if there is clear evidence that it is not in the best interests of the child for both parents to have equal rights and responsibilities towards them.

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