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. A visitation schedule is usually determined along with a custody decision. If there is not a pending Petition for Custody and if a parent desires to have a specific contact schedule with the child, a Petition for Parental Visitation (Form 350) may be filed. When a Petition for Parental Visitation (form #350) 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:
- 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.
- Both parents are ordered to take a “Parenting Education Class”.
After a Petition for Visitation 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 put in place until the Court hearing. If mediation is not successful, the petition will then be assigned to a Judge for a full hearing at a later date.
After an order for visitation has been entered, if either parent files a Petition for Visitation Modification, the petition 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.