Delaware Child Custody Laws: Types, Best Interests, and Your Rights

Delaware decides child custody by the best interests of the child under Del. Code tit. 13 sec. 722. The state uses the terms "legal custody" and "residential arrangements," designating parents as the primary or secondary residential parent, and does not presume joint custody or equal residential time.

How does Delaware decide child custody?

Delaware courts determine custody and residential arrangements by applying the best interests of the child standard codified at Del. Code tit. 13 sec. 722. The Family Court of the State of Delaware has jurisdiction over all custody matters. The statute names 8 specific factors the court must consider, and it frames them as part of "all relevant factors," so the enumerated list sets a minimum rather than a limit on what the court may weigh.

Section 722(b) also limits how the court may reason about a parent. It provides that the court shall not presume that a parent, because of that parent's sex, is better qualified than the other parent to act as joint or sole legal custodian or as the child's primary residential parent. That is a bar on a presumption, not a rule about the sex of the child. The same subsection bars the court from considering conduct of a proposed custodian or primary residential parent that does not affect that parent's relationship with the child, which matters to a parent worried that a new relationship or an old mistake unconnected to parenting will be held against them.

Types of custody in Delaware

Delaware uses two distinct components of custody. Legal custody is the authority to make major decisions about the child's upbringing, including choices about education, health care, and religious instruction. Residential arrangements govern where the child lives and the structure of each parent's parenting time.

Delaware's terminology differs slightly from some other states. Rather than using "primary" and "non-custodial" parent, Delaware law designates parents as the primary residential parent (the parent with whom the child lives most of the time) and the secondary residential parent (the parent who has scheduled residential time). Legal custody can be sole or joint, and residential time can range from a near-equal split to a schedule where one parent has the majority of overnights.

Does Delaware presume joint or 50/50 custody?

Delaware does not have a statutory presumption of joint custody or equal residential time. Section 722 requires the Family Court to evaluate each family on its facts and does not start with a thumb on the scale for any particular arrangement. Section 722(b) adds that the court may not presume either parent is better qualified because of that parent's sex.

This case-by-case approach means courts consider what residential schedule actually serves the individual child's needs, relationships, and stability. A parent seeking equal or near-equal residential time can certainly obtain it if the evidence supports that outcome, but no parent is entitled to it as a default. When parents reach a written agreement on a parenting arrangement, courts generally adopt it after confirming it is in the child's best interests.

Two targeted presumptions do exist, and they run against a parent rather than toward a schedule. Under Del. Code tit. 13 sec. 705A, there is a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child, and a second rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence. Those presumptions are overcome only if there have been no further acts of domestic violence and the perpetrator has completed a program of evaluation and counseling designed for perpetrators of family violence, completed alcohol or drug abuse counseling if the court finds it appropriate, and shown that giving custodial or residential responsibility to that parent is in the child's best interests. Otherwise the presumption yields only on a finding of extraordinary circumstances, such as evidence that no significant risk of future violence exists.

Section 705A(e) goes further. Where the court determines by at least a preponderance of the evidence that the perpetrator subjected any child to death or near-death injuries, the court may not award joint or sole custody, allow custodial or residential responsibilities, or permit any visitation without first considering expert testimony from a certified mental health professional that the arrangement is in the child's best interests. Section 724A creates a parallel rebuttable presumption for a registered sex offender, covering sole or joint custody, primary residence, and unsupervised visitation, with its own list of conditions that must all be met before the presumption can be overcome.

The best interests factors Delaware courts weigh

Del. Code tit. 13 sec. 722(a) directs the Family Court to consider all relevant factors, including these 8:

1. The wishes of the child's parent or parents as to the child's custody and residential arrangements
2. The wishes of the child as to the child's custodian or custodians and residential arrangements
3. The child's interaction and interrelationship with parents, grandparents, siblings, a person cohabiting in the relationship of husband and wife with a parent, any other residents of the household, and 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 the child under 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 whether that criminal history contains pleas of guilty or no contest or a conviction of a criminal offense

No single factor controls the outcome, and the 8 are not the whole universe. Because sec. 722(a) tells the court to weigh "all relevant factors including" these, a court may consider anything else that genuinely bears on the child's welfare. Two points about how the list is often paraphrased are worth noting. Factor 8 reaches the criminal history of any party, so a parent's own record counts even if that parent does not live in the household, and the statute attaches no safety-and-welfare qualifier to it. Factor 2 refers simply to the wishes of the child; the familiar rule that a child's preference carries more weight as the child matures comes from Delaware case law, and the age-and-maturity language appears in the statutes at sec. 734(4), the relocation provision, rather than in sec. 722.

Relocation: moving with your child

Delaware has a dedicated relocation statute at tit. 13 sec. 734. It applies when, in the course of litigation involving custody or visitation, a relocation of the child for a period of 60 days or more is proposed that involves either a move outside the State of Delaware or a move that materially affects the current custodial and residential arrangement or order. The out-of-state prong stands on its own, so a move across the state line for 60 or more days is covered even if it would not disturb the existing schedule. Section 734 does not itself create a freestanding duty to file a petition. It directs that when such a relocation is proposed in a pending custody or visitation case, the court must consider a specific set of factors.

Those factors are their own list, distinct from the sec. 722 best-interests factors. Section 734 requires the court to consider the nature, quality, extent of involvement, and duration of the child's relationship with the individual proposing to relocate and with the nonrelocating individual, siblings, and other significant people in the child's life; the child's age, developmental stage, and needs, and the likely impact of the move on the child's physical, educational, and emotional development; the feasibility of preserving the nonrelocating individual's relationship with the child through suitable visitation, considering logistics and the parties' finances; the child's preference, taking age and maturity into account; whether the individual seeking relocation has an established pattern of conduct promoting or thwarting the child's relationship with the other individual; whether the move will enhance the general quality of life for both the relocating individual and the child, including financial or emotional benefit or educational opportunity; each individual's reasons for seeking or opposing the relocation; and any other factor affecting the child's best interest.

Parents contemplating a move of this type should raise the matter with the other parent as early as possible and attempt to negotiate a revised residential schedule before the issue reaches a hearing. Note also that under sec. 721(d), the filing of a custody or visitation petition triggers a preliminary injunction against both parties barring them from removing the child from the court's jurisdiction without the other party's prior written consent or the court's permission.

Changing a custody order (modification)

Which modification rule applies depends on how the existing order was entered, and this is where Delaware is commonly described too restrictively. Under sec. 729(b), an order entered by the court by consent of all parties, an interim order, or a written agreement between the parties concerning legal custody or the child's residence may be modified at any time by the court under the sec. 722 best-interests standard. Many Delaware custody arrangements are consent orders, and for those there is no waiting period at all.

The 2-year rule lives in sec. 729(c), and it applies only to an order the court entered after a full hearing on the merits. If an application to modify such an order is filed within 2 years of the court's most recent order on those matters, sec. 729(c)(1) provides that the court shall not modify the 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 the child's emotional development. The direction of that test matters: the question is the risk created by keeping the current order in place, not the harm of denying a change, and emotional development counts alongside physical health, so a parent with an emotional-harm case has a route.

After the 2-year period, sec. 729(c)(2) applies a broader analysis. The court considers whether harm is likely to be caused to the child by a modification and, if so, whether that harm is outweighed by the advantages of the change; each parent's compliance with prior custody and visitation orders and with the duties under sec. 727, including whether either parent has been sanctioned under sec. 728(b) since the prior order; and the sec. 722 factors.

Visitation is treated separately again. Under sec. 729(a), an order concerning visitation may be modified at any time if the best interests of the child would be served, applying the standards in sec. 728(a).

Delaware parents managing related financial matters can find information at the Delaware Child Support Laws page. To estimate a likely support amount based on income, use our Delaware child support calculator. If alimony is also at issue, see Delaware Alimony Laws. For questions about a minor's legal independence, see Delaware Emancipation Laws.

If you are facing a custody case in Delaware

If you are involved in a custody proceeding in Delaware's Family Court, practical preparation matters. Start by documenting your involvement in the child's day-to-day life: school pickups and drop-offs, medical appointments, extracurricular activities, and overnight caregiving. The court pays close attention to which parent has historically been the primary caregiver and each parent's pattern of compliance with existing orders.

Propose a detailed parenting plan before the hearing. A well-drafted plan that addresses the regular residential schedule, holiday and school-break division, vacation notice requirements, and a decision-making protocol for major issues signals that you are focused on the child's needs rather than on conflict with the other parent. Courts in Delaware, as in most states, will adopt a thoughtful agreed-upon parenting plan if it serves the child's best interests.

Consider mediation. Delaware Family Court encourages parties to resolve custody disputes through mediation or a case management conference before a contested hearing. Agreements reached outside of court are often more durable and give both parents greater ownership of the parenting arrangement. If the case is contested, consult a Delaware family-law attorney who practices regularly in Family Court for guidance specific to your facts.

This article is general legal information, not legal advice. Child custody law varies by state and turns on the specific facts of each family. For advice about your situation, consult a licensed family-law attorney in Delaware.

Related Pages

For a nationwide overview of how custody works across all states, visit our Child Custody Laws hub. Delaware parents also navigating support can review Delaware Child Support Laws. For divorce-related spousal support questions, see Delaware Alimony Laws. For information on a minor's legal independence, see Delaware Emancipation Laws.

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• Delaware Alimony Laws
• Delaware Child Support Laws
• Delaware Divorce Laws
• Delaware Emancipation Laws
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