Family Law

How do Judges Decide Child Custody in Delaware

By Kristina Otterstrom, Attorney
Making sense of custody orders in Delaware.

Overview of Custody and Visitation in Delaware

In a custody proceeding, a judge will decide two types of custody—physical and legal custody. The parent with physical custody resides with the child. A parent with legal custody has the right to make major decisions on a child’s behalf, including educational, medical, and religious decisions.

Parents can share legal and physical custody (called “joint custody”) or one parent may have sole physical and/or legal custody. Even when parents share joint physical and legal custody, one parent will be designated as the custodial parent, who has the final say when parents can’t agree on a matter involving their child.

A custody order is designed to give each parent as much time as possible with the child, while serving the child’s best interests. In cases where there has been domestic violence or abuse, a judge may limit an abusive parent’s custody and visitation. Supervised visitation is one way a judge can protect a child’s safety, while still allowing contact between a child and abusive parent. An abusive parent may have visits with the child supervised by a third-party for a period of time or until a judge decides it’s in a child’s best interests to have traditional visitation.

How Will a Judge Determine Custody?

A child’s best interests are at the heart of every custody proceeding. A judge will weigh a number of factors to determine a child’s needs and each parent’s ability to meet those needs. Specifically, a judge may examine the following:

  • each parent’s reasons for seeking custody
  • the child’s wishes, if the child is of a sufficient age and maturity
  • the child’s relationship with each parent
  • the child’s relationship with extended family, siblings, and any other residents of either parent’s household
  • the child’s adjustment to home, school, and community
  • each parent’s mental and physical health
  • each parent’s past compliance with custody orders and rights and responsibilities for the child
  • either parent’s history of domestic violence, if any, and
  • either parent’s—or any other household member’s—criminal history.

Delaware’s statute specifically prevents judges from considering either parent’s gender as a basis for awarding custody. Additionally, a parent’s conduct can’t be considered in a custody proceeding, unless that conduct directly affects the parent’s ability to care for the child. In other words, it’s irrelevant whether or not one parent is a bartender or if one parent owns a tattoo shop if that parent’s work conduct doesn’t affect the child.

Can Parents Make Their Own Custody Agreements?

Parents can work out their own custody agreements together—or with assistance from an attorney or mediator—and submit the agreement to a judge for approval. Couples who use an attorney should understand that an attorney can only give legal advice to the parent who hired the attorney. For example, if your child’s other parent hired an attorney to draft a custody agreement, you can sign the agreement, but you can’t seek legal advice from your ex’s attorney. If you have doubts or concerns about what you’re agreeing to, it’s important to find your own attorney.

A complete custody agreement should address:

  • legal and physical custody
  • a holiday and summer vacation visitation schedule
  • transportation costs between visits
  • location of child exchanges
  • child support, medical insurance, and extracurricular activity costs, and
  • custody in the event of relocation.
If a major element is missing from your custody agreement, a judge may reject it and require you to attend a trial on custody. Conversely, if your agreement is complete and clearly serves the child’s best interests, a judge can sign off on the agreement and make it an official court order. Both parents must follow the custody agreement. If one parent refuses to follow the terms of the custody order, the other parent can file a child custody or child support enforcement action against the non-compliant parent.

Will a Judge Modify My Custody Order?

A custody modification is appropriate when the current order no longer serves the child’s best interests. The parent who wants to alter custody arrangements bears the burden of proving that a material change in circumstances has occurred, and a change to custody would serve the child’s best interests. A judge will consider many of the same best interests factors to determine if a modification is appropriate.

Custody modifications come with their own set of challenges. For example, if a judge recently issued your custody order, you’ll have a difficult time getting it modified, even with a change in circumstances. For example, one parent’s relocation or remarriage doesn’t automatically justify a modification. However, if a parent moves outside the country because of the remarriage, a change in custody might be warranted. Ultimately, a judge will order a custody modification when it clearly serves the child’s best interests.

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