Custody Overview

Introduction

What is Child Custody.
Is Delaware the Correct State to File for Custody?

Under Delaware law, parents are joint natural custodians of their children.  When parents live separate and apart, either or both parents may file a petition in Family Court asking that the court award custody to him/her.  When a Petition for Custody (form #345) is filed in Family Court, a Preliminary Injunction is served immediately on the petitioner and on the respondent with service of the petition.  This Preliminary Injunction contains two orders:  1.  Neither parent shall permanently remove the child from the State of Delaware while the custody/visitation proceedings are pending in the Court without the permission of the other parent or the Court.  2.  Both parents are ordered to take a “Parenting Education Class”.

Under Delaware law,  whether parents have joint legal custody or one parent has sole legal custody of a child,  each parent has the right to receive, when requested from the other parent, all material information concerning the child’s progress in school, medical treatment, school activities and conferences, religious events, and other activities in which the child participates.  Both parents have a right to attend all these activities.  Both parents also have the right to access to the child by phone and mail.  Each Court Order shall contain a contact (visitation) schedule with the non-custodial or non-residential parent.  If the Court finds, after a hearing, that any of these rights would present a danger to the child’s physical health or impair the child’s emotional development, the Court could restrict these rights. View Best Interests Factors checklist.

After a Petition for Custody is filed in Family Court, the respondent in the petition must be personally served with a summons including a copy of the petition.  When positive service has been returned to the Court, the case is normally referred to mediation.  If there has been a finding of domestic violence or a no contact order is currently in effect concerning the parties, there will not be a mediation hearing unless the victim’s attorney requests a mediation hearing and is present.  If mediation is bypassed, the petition will be assigned to a Judge for a hearing.

Prior to mediation, each party is required to fill out the Custody, Visitation and Guardianship Disclosure Report (Form 364). Each party shall bring the completed form to mediation. If mediation is bypassed, each party must complete and exchange with the opposing party or attorney a Custody, Visitation, and Guardianship Disclosure Report at least 7 calendar days prior to the first court appearance. The Custody, Visitation, and Guardianship Disclosure Report must also be filed with the Court at least 7 calendar days prior to the first court appearance.

At the mediation hearing, the mediator will assist the parents in coming to an agreement or defining the issues which the parents cannot agree upon.  The mediator will inform both of the parties of the language and content of the Contact Guidelines used by the Court.  If the parents are able to come to an  agreement, a consent order will be completed and signed by the parents.  If the parents are not able to come to a full agreement on the petition  and cannot agree on a temporary contact schedule with the child, the mediator may recommend a contact schedule which may be in place until the Court hearing.  If mediation is not successful, the petition will be assigned to a Judge for a full hearing at a later date.

After an order for custody has been entered, if either parent files a Motion and Affidavit to Modify Custody, the motion will again be referred to mediation (unless bypassed because of a finding of domestic violence or no contact order).  If no agreement is reached at mediation, the petition would be referred to a Judge. If not previously completed, each party must complete the Parenting Education Class.

Additional information can be found in Title 13, Chapter 7 of the Delaware Code.