Delaware Custody Laws & Parenting Plans

Navigating child custody in Delaware requires understanding how courts apply the "best interest of the child" standard codified in 13 Del. C. § 722. Whether you're pursuing an uncontested or contested divorce, creating an effective parenting plan means translating Delaware's statutory factors into practical, daily schedules that serve your children's wellbeing.

This comprehensive guide walks you through Delaware custody laws, the Family Court mediation process, parenting education requirements, and step-by-step guidance for building a court-compliant parenting plan. Delaware's Family Court has exclusive jurisdiction over custody matters and uses a structured approach to resolve disputes through mandatory mediation before judicial hearings.

Types of Custody in Delaware

Delaware law distinguishes between two forms of custody, each carrying different legal implications for parents navigating the Family Court system:

Legal Custody

Legal custody refers to the right and responsibility to make major decisions about your child's upbringing, including:

• Education decisions (school enrollment, special education, tutoring)
• Healthcare choices (medical treatment, therapy, medications)
• Religious upbringing and training
• Extracurricular activities and travel

Delaware courts may award sole legal custody to one parent or joint legal custody where both parents share decision-making authority. Joint legal custody requires parents to communicate and cooperate on major decisions, and courts consider each parent's willingness to facilitate this cooperation when making their determination.

Physical Custody (Residential Arrangements)

Delaware uses the term "residential arrangements" to describe where the child lives and the day-to-day parenting schedule. Options include:

• Primary residential custody: The child lives primarily with one parent while the other has scheduled visitation
• Shared residential custody: The child spends substantial time with both parents under a structured schedule
• Split custody: Different children reside primarily with different parents (rare and generally disfavored)

See how different custody arrangements affect your parenting time:

The Best Interest Standard: 13 Del. C. § 722

Delaware courts must prioritize the child's best interest in all custody decisions. Under 13 Del. C. § 722, judges evaluate a comprehensive set of statutory factors before determining custody and residential arrangements.

Statutory Best Interest Factors

The Family Court considers all relevant factors including:

1. Wishes of the parents regarding custody and residential arrangements
2. Wishes of the child regarding custodians and living arrangements, considering the child's age and maturity
3. Interaction and relationships of the child with parents, grandparents, siblings, and other persons residing in the household
4. Child's adjustment to home, school, and community
5. Mental and physical health of all individuals involved
6. Compliance with parental responsibilities under 13 Del. C. § 701, which outlines each parent's rights and duties
7. Evidence of domestic violence as provided under Chapter 7A of Title 13
8. Criminal history of the parties and any household members

Important: Delaware law does not apply any gender presumption in custody determinations. Both mothers and fathers are evaluated equally under the statutory best interest factors.

Mandatory Custody Mediation

Under Delaware Family Court rules, mediation is mandatory as the first step in custody, visitation, child support, and guardianship proceedings. The Delaware Family Court requires parties to attempt to resolve their differences before a judge hears the case.

• Disclosure requirement: Both parents must complete the Custody, Visitation and Guardianship Disclosure Report (Form 364) and bring it to mediation
• Mediation format: A court mediator facilitates discussions between parents to reach agreement on custody and residential arrangements
• If mediation succeeds: The agreement is formalized and presented to the court for approval
• If mediation fails: The case proceeds to a judicial hearing where the judge applies the § 722 best interest factors

Domestic Violence Exceptions

Mediation is not required when:

• There is an active no-contact or protective order between the parties
• There has been a previous finding of domestic violence
• One of the parties is a registered sex offender under Delaware law

In these situations, the case proceeds directly to a judicial hearing. However, if the protected party's attorney specifically requests mediation and is present, separate-session mediation may be arranged with appropriate safety measures.

Parenting Education Requirements

Delaware requires parents involved in custody proceedings to complete a certified parenting education course. This requirement helps parents understand the impact of separation on children and develop effective co-parenting strategies.

• Duration: A minimum 4-hour certified course (some programs run 6–8 hours)
• Both parents required: Each parent must independently enroll in and complete an approved program
• Separate classes allowed: Parents do not need to attend the same session
• Enhanced course for DV cases: A party with a demonstrable history of domestic violence must complete a more intensive program
• Timing: Must be completed before the case is considered trial-ready

The Delaware Family Court Parent Education page lists all approved providers. Parents are responsible for enrolling themselves and must choose from the court-approved list.

What Your Parenting Plan Must Include

A well-crafted Delaware parenting plan addresses several critical areas. While the court does not mandate a specific template, effective plans cover the following elements:

1. Regular Custody Schedule

• Weekday and weekend residential arrangements
• Specific transition times and exchange locations
• School-year schedule versus summer schedule
• Transportation responsibilities for each parent

2. Holiday and Special Occasion Schedule

• Major holidays (Thanksgiving, Christmas, Easter, Fourth of July)
• School breaks (winter, spring, and summer vacation)
• Children's birthdays and parents' birthdays
• Mother's Day and Father's Day
• Three-day weekends and teacher in-service days

3. Communication Protocols

• Parent-to-parent communication methods (text, email, co-parenting apps)
• Phone and video call schedule between the child and non-residential parent
• Information sharing about school events, medical appointments, and activities
• Guidelines about discussing the divorce or the other parent with children

4. Decision-Making Framework

• How major decisions will be made (joint consultation, primary authority, tiebreaker process)
• Emergency decision-making authority
• Day-to-day decisions during each parent's residential time

5. Dispute Resolution Process

• Agreement to attempt mediation before returning to court
• Parenting coordinator provisions if needed
• Timeline for resolving disagreements

Automatic Injunction Protecting Children

Under 13 Del. C. § 1509, when a divorce petition is filed, an automatic preliminary injunction takes effect immediately. This injunction protects children and marital assets during the proceedings:

• No removal from Delaware: Neither parent may remove any child residing in Delaware from the court's jurisdiction without the other parent's written consent or a court order
• No asset dissipation: Neither party may transfer, conceal, or dispose of property except in the ordinary course of business or for necessities
• No harassment: Neither party may molest or disturb the peace of the other
• Credit restrictions: Neither party may incur credit for which the other may be liable, except for necessities

This injunction applies to the petitioner immediately upon filing and to the respondent upon service or appearance. Violation can result in contempt of court and sanctions.

Child Support and Custody Connection

Your custody arrangement directly affects child support calculations in Delaware. The state uses the Melson Formula, a comprehensive income-shares model that factors in:

• Each parent's adjusted net income
• The number of children and their ages
• Percentage of overnight stays with each parent
• Health insurance and extraordinary medical expenses
• Childcare costs necessary for employment

Generally, more parenting time correlates with adjustments to child support obligations. Use our calculator to estimate how different custody arrangements affect support:

When Children Can Express Preferences

Delaware's best interest factors under § 722 specifically include the "wishes of the child as to such child's custodian or custodians and residential arrangements." Key considerations:

• No fixed age threshold: Delaware does not set a specific age at which a child's preference controls; instead, the court considers age and maturity on a case-by-case basis
• Weight varies: A teenager's expressed preference carries more weight than a younger child's, but no child's wish is determinative
• Methods of expression: The judge may hear from the child through in-chambers interviews, through a guardian ad litem, or through a custody evaluator's report
• Coaching concerns: Courts look for genuine preferences versus parental coaching or manipulation

Relocation and Move-Away Rules

Delaware takes a protective approach to parental relocation. Under the automatic injunction in § 1509, neither parent may remove a child from Delaware without the other parent's consent or court permission during pending proceedings. After a custody order is in place:

• Court approval required: A parent seeking to relocate with the child must petition the court and demonstrate the move serves the child's best interest
• Best interest re-evaluation: The court applies the § 722 factors anew, considering the relocation's impact on the child's relationship with the non-relocating parent
• Revised parenting plan: If relocation is approved, the court modifies the custody order and parenting schedule to preserve meaningful contact with both parents

Modifying Custody Orders

Delaware custody orders can be modified when circumstances change significantly:

• Material change of circumstances: The requesting parent must demonstrate a real and substantial change since the original order, such as relocation, safety concerns, a parent's changed behavior, or the child's evolving needs
• Best interest re-analysis: If a material change is shown, the court re-applies the § 722 factors to determine whether modification serves the child's best interest
• Stipulated modifications: If both parents agree to changes, they can submit a modified plan to the court for approval
• Emergency modifications: Available when there is immediate risk to the child's health or safety, including temporary emergency orders under § 1509

Domestic Violence and Custody

Delaware takes domestic violence seriously in custody determinations. Under Chapter 7A of Title 13, evidence of domestic violence is a specifically enumerated best interest factor. Key protections include:

• Mandatory consideration: The court must weigh evidence of domestic violence when applying the best interest standard
• Mediation bypass: Cases involving active protective orders or prior DV findings skip mandatory mediation
• Enhanced parenting education: A parent with a documented DV history must complete a more intensive parenting course
• Supervised visitation: The court may order supervised contact to protect the child's safety
• Protection From Abuse (PFA) orders: Delaware Family Court issues PFA orders that may restrict contact and access

Filing for Custody in Delaware

If custody is part of a Delaware divorce case, custody claims must be raised before the divorce decree is entered. The process typically follows this path:

1. File the petition: Include custody requests in your divorce petition (Form 442) or file a separate custody petition in Family Court
2. Submit required forms: File the Affidavit of Children's Rights (Form 279) confirming you've read the children's rights under § 1507(g)
3. Enroll in parenting education: Register for an approved parenting course from the court's provider list
4. Attend mandatory mediation: Complete the Form 364 disclosure and participate in mediation
5. Judicial hearing: If mediation fails, the court schedules a hearing where both parents present evidence on the § 722 best interest factors
6. Court order: The judge issues a custody and residential arrangement order based on the child's best interest

For information about the overall divorce process and timeline, see our Delaware divorce timeline guide.

Key Takeaways

• Best interest standard: 13 Del. C. § 722 lists eight statutory factors the court must evaluate in every custody case
• No gender presumption: Delaware evaluates mothers and fathers equally under the best interest test
• Mandatory mediation: All custody disputes must go through court mediation before a judicial hearing, with DV exceptions
• Parenting education required: Both parents must complete a certified 4+ hour parenting course before trial readiness
• Automatic injunction: Filing triggers immediate protections including a bar on removing children from Delaware
• Melson Formula: Custody time directly affects child support calculations
• No fixed age for child preference: The court weighs a child's wishes based on age and maturity, not a specific cutoff
• Modification available: Custody orders can be changed upon showing a real and substantial change in circumstances