In Delaware, child custody is determined by a Judge using the “best interests of the child” standard. This standard is designed to determine a custodial arrangement that places the child in the best environment to enjoy a happy, healthy, and safe life.

Only parents may petition for custody. In certain limited circumstances, a step-parent may petition as well. Although the Court can award guardianship to other relatives or friends, the term “custody” is only used to describe arrangements between the parents. With some exceptions, a child must either be born in Delaware (if under 6 months old) or have resided in Delaware at least six consecutive months prior to filing for custody.

The parents must be living separately or the Court will not consider making a custody decision. Custody is actually two parts: legal custody and residential placement. Legal custody involves who makes decisions on behalf of the child. Residential placement concerns where the child resides and what, if any, visitation is with the other parent.

Legal Custody

Legal Custody is said to be joint or sole. In sole custody cases, one parent is designated as the sole custodian and is able to make decisions on behalf of the child without the other parent’s input. In joint custody cases, the parents are expected to discuss their differences and come to a mutual decision about their children’s needs. Even in sole custody cases, however, a parent has the right to receive on request information about the child’s health, schooling, and other important information concerning their child.

If sole custody has been previously awarded and a parent does not feel that the sole custodian is making appropriate decisions for the child, you may file a petition to modify legal custody. If there is no custody order already on record, the parents have joint legal custody as part of their natural parental rights. Except in cases of serious domestic violence, mental illness, or other extraordinary facts, the Court has a strong preference to allow both parents to play a role in the decision-making process for their children.

Residential Placement

Residential Placement can vary dramatically from case to case. Delaware does not default to awarding one parent primary residency and giving the other parent “every other weekend” visitation. There is no “one-size-fits-all residency arrangement. Instead, the goal is to tailor a schedule that works with both parents’ work schedules and encourages a positive bond between the children and both parents while still giving the children a sense of stability. Of course, when school-age children are involved, consideration must be given to the distance between the parents’ homes and the children’s school so that their education is not disrupted.

In cases of serious domestic violence, mental illness, or other extraordinary scenarios, the Court may award supervised visitation where one parent spends time with the children in a supervised setting at one of the many visitation centers throughout Delaware.

Custody Case Process

A custody case begins with filing a Petition for Custody that describes the reasons why a parent believes it is in the best interests of their child to have a certain custodial arrangement. The other parent is then served with the Petition and is given twenty days to file an Answer admitting or denying the reasons in the Petition. The parent filing the Petition must then take a Parent Education Course.


Unless there is an Order of Protection From Abuse, the case is then scheduled before a mediator who meets with the parents to attempt to reach an agreement on custody. If the parents are able to reach an agreement, the mediator puts the agreement in writing, both parents sign the agreement, and it is sent to a Judge or Commissioner to be entered as an Order of the Delaware Family Court. If an agreement is reached at mediation, the case ends and that agreement becomes the custody order.

Discovery Period

If there is no agreement after mediation, the case is scheduled for trial after the parent who filed the Petition has completed the parent education course. If there is no current custody order, a temporary interim order will be entered, either by agreement or recommendation of the mediator. Before trial, both parents are able to seek discovery from the other parent. Discovery may consist of requests for documents as well as depositions of the other parent, teachers, step-parents,  significant others, grandparents, or anyone else with information about the child’s best interests. In some cases, psychologists or other mental health professionals may be hired by one or both of the parents to testify at trial about what arrangement is best for the children. If there are concerns about mental health or substance abuse, one or both of the parents may be required to undergo a substance abuse evaluation or mental health evaluation.


When the case goes to trial, the Judge hears testimony and receives evidence from both parents as well as any witnesses about what is in the children’s best interests. The Judge then makes a decision about legal custody, residential placement, and visitation after considering, among other things, the wishes of the parents, the wishes of the child, the interaction between the child and everyone in both parents’ homes, the child’s adjustment to his or her school and community, the mental and physical health of everyone involved, the criminal history and substance abuse history of everyone involved and how well the parents have met their obligations to the child up to that point in the child’s life.

If the parents request it, the Court  can interview the child or children. These interviews are recorded, but are done in private with just the Judge and his or her staff. After the Judge has heard all the evidence, the Court will put that decision in writing within 90 days of the trial. If either side is unhappy with the decision or believes the Judge wrongly applied the law, they may appeal within 30 days or file a motion for re-argument within 10 days. If they do not appeal, that right is lost and the Judge’s decision stands.

Custody Modification

Modification of custody can be difficult. If the Court has entered a decision after a trial within 2 years, the Court will not modify the decision unless a parent can show that continuing the current arrangement will hurt the children physically or emotionally. This is a very difficult standard. By contrast, if the parents have reach an agreement, they may file to modify custody at any time and a Judge will decide that case under the best interests of the child factors.

Consult a Wilmington Child Custody Lawyer

The child custody process—particularly discovery, speaking to experts, preparing a case for trial, and presenting the case—is complex and requires significant time and energy to be done properly. More than any other area of family law, the child custody process brings out strong emotions in everyone involved and those emotions can stand in the way of the best resolution for the parents and the children. The Family Court cannot provide you legal advice or guidance on how to protect your rights.

Don’t risk a bad decision that may be difficult to modify in the future! The Family Law attorneys at Doroshow, Pasquale, Krawitz & Bhaya can represent you and ensure that your rights are protected and that your case is presented in a way that increases your chances of a favorable outcome for you and your children. Call us today for a consultation.