Child custody in Delaware

What the law tells the judge to look at

In the order the law lists them.

1. What each parent wants for the child's custody and living arrangements.13 Del. C. § 722(a)(1)
2. What your child wants about custody and where to live.13 Del. C. § 722(a)(2)
3. How your child gets along with parents, grandparents, brothers and sisters, a parent's live-in partner, others in the home, and anyone else who may strongly affect the child.13 Del. C. § 722(a)(3)
4. How well your child is adjusted to home, school, and community.13 Del. C. § 722(a)(4)
5. The mental and physical health of everyone involved.13 Del. C. § 722(a)(5)
6. How well each parent has met, and is meeting, their duties to the child (support, care, nurture, welfare, and education).13 Del. C. § 722(a)(6)
7. Evidence of domestic violence.13 Del. C. § 722(a)(7)
8. The criminal history of any party or anyone else living in the home, including guilty or no contest pleas and convictions.13 Del. C. § 722(a)(8)

Other things the judge considers

• Any past or present act of domestic violence, even if the child did not see it, must be considered. If the judge still gives custody or primary residence to a parent who committed domestic violence, the judge must explain why in writing.13 Del. C. § 706A
• The visitation schedule should allow frequent and meaningful contact with both parents, unless contact would endanger the child's physical health or significantly impair the child's emotional development.13 Del. C. § 728(a)
• A parent who flees domestic violence and temporarily leaves the child behind (not in immediate danger) is not treated as having abandoned the child.13 Del. C. § 704A

What the judge may not consider

The judge may not presume that a parent is better qualified because of the parent's sex, and may not consider a parent's conduct that does not affect the parent's relationship with the child (13 Del. C. § 722(b)).

Joint custody

No presumption. Neither parent has a presumption of being better suited for custody, and the law does not favor joint or sole custody.

The child's wishes

The judge considers your child's wishes. Delaware law does not set an age. The judge may interview your child in chambers or on the record.

Domestic violence

There is a rebuttable presumption that a 'perpetrator of domestic violence' (a person convicted of certain offenses, such as any felony, third-degree assault, or criminal contempt of a protective order, against the child, the other parent, or another person in the home) cannot get sole or joint custody and that the child should not mainly live with that person. The presumption can be overcome only if there has been no further violence and the person completed a program for family violence perpetrators, any ordered drug or alcohol counseling, and shows custody is in the child's best interest, or if a judge finds extraordinary circumstances. Court mediation is not allowed if a court has found domestic violence between the parties or there is a no-contact order, unless a victim with a lawyer asks for it.

Who has custody before a court order

Before any court order, both parents are the joint natural guardians of their child with equal powers and duties, and neither has a better right to custody. If one parent dies, abandons the family, or cannot act, custody goes to the other parent. When parents live apart, either can ask Family Court for custody.

Establishing paternity

How

If both parents are 18 or older and agree, they can sign a Voluntary Acknowledgment of Paternity (VAP). You can sign it at the hospital after the birth, or later at a Division of Child Support Services office or the Office of Vital Statistics, any time until your child turns 18 (19 if still in high school). There is no fee. Either parent has 60 days to cancel it. If the mother was married within 300 days before the birth, or another man lived with the child for the first 2 years and held the child out as his own, a Denial of Paternity must also be filed. Parents under 18 cannot sign a VAP and must use the court process. You can also ask Family Court to decide parentage; DCSS can help with genetic testing.

Form

Voluntary Acknowledgment of Paternity (VAP); Denial of Paternity (DOP) when there is a presumed father

Cancelling it

Either signer can cancel within 60 days (DCSS page). The Delaware Code text now posted requires a court proceeding to rescind, started within 60 days or before the first hearing about the child (13 Del. C. § 8-307, version effective Dec. 6, 2026).

Agency

Delaware Division of Child Support Services (DCSS): Establish Paternity or Parentage
https://dhss.delaware.gov/dcss/division-of-child-support-services/paternity-parentage-establishment/
(302) 577-7171

Changing an order

A visitation order can be changed at any time if it is in the child's best interest. A custody or residence order made by agreement, or a temporary order, can be changed at any time under the best-interest factors. A custody or residence order made after a full hearing is harder to change: within 2 years of the last order, the judge can change it only if continuing it may endanger the child's physical health or significantly impair the child's emotional development. After 2 years, the judge weighs any harm from the change against its advantages, each parent's compliance with past orders, and the best-interest factors. A custody order can be changed at any time if a parent with custody commits domestic violence after the order. You file a verified petition to modify.

Waiting period: 2 years after the last order made after a full hearing, unless the child is endangered (13 Del. C. § 729(c)).

Law: 13 Del. C. §§ 709A, 729, 730

If the other parent does not follow the order

If a parent interferes with the other parent's custody, residence, or visitation rights, the judge must, after a hearing, order that parent to pay the other parent's costs and reasonable attorney's fees, and must also order one or more of: extra make-up visits; a temporary transfer of custody or primary residence for up to 30 days; a surcharge of up to 10% of the visiting parent's monthly child support for each time that parent fails without good reason to follow the schedule; a fine; or jail for contempt. A custody order can ask police to help; a police officer may enter private property to take physical custody of a child to enforce it.

Law: 13 Del. C. §§ 727(e), 728(b)

Grandparent visitation

Yes. A grandparent, aunt, uncle, or adult sibling, or any adult with a substantial and positive prior relationship with the child, can file a petition for third-party visitation in Family Court. Before granting visits, the judge must find visits are in the child's best interest and, for each parent, that the parent consents, the child is dependent, neglected, or abused in that parent's care, the parent has died, or the parent objects but the objection is shown to be unreasonable by clear and convincing evidence and visits will not substantially interfere with the parent-child relationship. A child, through a guardian ad litem, can also ask for visits with a brother or sister who shares a parent.

Custody by someone who is not a parent

Delaware law sends non-parents who want custody to the guardianship chapter (13 Del. C. ch. 23). A stepparent who has lived with the child can ask to keep the child after the custodial parent dies or becomes disabled, and may be given custody under the best-interest factors.

Custody and visitation in the order

Yes. A PFA order can grant temporary custody of the children to the petitioner or another family member, and the court can set interim visitation. An emergency (ex parte) order can be issued if there is immediate and present danger; the full hearing is within 15 days.