Delaware Child Custody Laws: Types, Best Interests, and Your Rights

Delaware decides child custody by the best interests of the child under Del. Code tit. 13 sec. 722. The state uses the terms "legal custody" and "residential arrangements," designating parents as the primary or secondary residential parent, and does not presume joint custody or equal residential time.

How does Delaware decide child custody?

Delaware courts determine custody and residential arrangements by applying the best interests of the child standard codified at Del. Code tit. 13 sec. 722. The Family Court of the State of Delaware has jurisdiction over all custody matters. Unlike some states that rely on open-ended judicial discretion, Delaware's statute enumerates 8 specific factors the court is required to consider, providing parents with a clear framework for understanding how decisions will be made.

Delaware's statute also reflects an explicit commitment to gender neutrality. Section 722(b) states that the court shall not consider the sex of the child or the parent when making a custody determination, abolishing any lingering suggestion that one parent is presumptively better suited to care for a child based on gender alone.

Types of custody in Delaware

Delaware uses two distinct components of custody. Legal custody is the authority to make major decisions about the child's upbringing, including choices about education, health care, and religious instruction. Residential arrangements govern where the child lives and the structure of each parent's parenting time.

Delaware's terminology differs slightly from some other states. Rather than using "primary" and "non-custodial" parent, Delaware law designates parents as the primary residential parent (the parent with whom the child lives most of the time) and the secondary residential parent (the parent who has scheduled residential time). Legal custody can be sole or joint, and residential time can range from a near-equal split to a schedule where one parent has the majority of overnights.

Does Delaware presume joint or 50/50 custody?

Delaware does not have a statutory presumption of joint custody or equal residential time. Section 722 requires the Family Court to evaluate each family on its facts and does not start with a thumb on the scale for any particular arrangement. Section 722(b) reinforces this by expressly providing that no sex-based presumption applies.

This case-by-case approach means courts consider what residential schedule actually serves the individual child's needs, relationships, and stability. A parent seeking equal or near-equal residential time can certainly obtain it if the evidence supports that outcome, but no parent is entitled to it as a default. When parents reach a written agreement on a parenting arrangement, courts generally adopt it after confirming it is in the child's best interests.

The best interests factors Delaware courts weigh

Del. Code tit. 13 sec. 722(a) enumerates 8 factors the Family Court must weigh:

1. The wishes of the child's parent or parents about the child's custody and residential arrangements
2. The wishes of the child, given appropriate weight based on the child's age and maturity
3. The child's relationships with parents, grandparents, and siblings and the importance of those relationships to the child's welfare
4. The child's adjustment to home, school, and community
5. The mental and physical health of all individuals involved
6. Each parent's past and present compliance with rights and responsibilities regarding the child
7. Evidence of domestic violence as defined in Delaware law
8. The criminal history of any resident of the household, to the extent that the criminal history affects the child's safety and welfare

No single factor controls the outcome. The court weighs all 8 together in light of the child's overall welfare.

Relocation: moving with your child

Delaware has a dedicated relocation statute at tit. 13 sec. 734. The statute is triggered when a parent proposes to relocate for 60 or more days and the move would affect the other parent's residential time with the child. In that situation, the relocating parent must seek court review of a revised residential schedule.

The court evaluates the proposed relocation under a best-interests analysis that mirrors the standard factors in sec. 722, focusing on the impact of the move on the child's relationships, adjustment, and access to both parents. Parents who are contemplating a move of this type should raise the matter with the other parent as early as possible and attempt to negotiate a revised residential schedule before filing with the court. Moving without court approval when the other parent objects can be treated as contempt and weigh against the relocating parent.

Changing a custody order (modification)

Delaware imposes a meaningful waiting period before a custody order can be revisited. Under sec. 729, a parent may not seek modification within 2 years of the prior order unless the court is satisfied that there is a risk of serious physical harm to the child or that the child is in serious danger if the modification is not granted.

After the 2-year period, the standard changes. The court considers a modification request by weighing the child's best interests along with two additional factors: the risk of harm to the child that might result from the modification, and whether each parent has been complying with the existing order. This framework encourages stability by discouraging frequent litigation while still allowing modification when circumstances genuinely warrant it.

Delaware parents managing related financial matters can find information at the Delaware Child Support Laws page. If alimony is also at issue, see Delaware Alimony Laws. For questions about a minor's legal independence, see Delaware Emancipation Laws.

If you are facing a custody case in Delaware

If you are involved in a custody proceeding in Delaware's Family Court, practical preparation matters. Start by documenting your involvement in the child's day-to-day life: school pickups and drop-offs, medical appointments, extracurricular activities, and overnight caregiving. The court pays close attention to which parent has historically been the primary caregiver and each parent's pattern of compliance with existing orders.

Propose a detailed parenting plan before the hearing. A well-drafted plan that addresses the regular residential schedule, holiday and school-break division, vacation notice requirements, and a decision-making protocol for major issues signals that you are focused on the child's needs rather than on conflict with the other parent. Courts in Delaware, as in most states, will adopt a thoughtful agreed-upon parenting plan if it serves the child's best interests.

Consider mediation. Delaware Family Court encourages parties to resolve custody disputes through mediation or a case management conference before a contested hearing. Agreements reached outside of court are often more durable and give both parents greater ownership of the parenting arrangement. If the case is contested, consult a Delaware family-law attorney who practices regularly in Family Court for guidance specific to your facts.

This article is general legal information, not legal advice. Child custody law varies by state and turns on the specific facts of each family. For advice about your situation, consult a licensed family-law attorney in Delaware.

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Sources

• Delaware Code Title 13, Chapter 7, Subchapter II (Custody) (Del. Code tit. 13 sec. 722, 729, 734, and 1901-1927)

Related Pages

For a nationwide overview of how custody works across all states, visit our Child Custody Laws hub. Delaware parents also navigating support can review Delaware Child Support Laws. For divorce-related spousal support questions, see Delaware Alimony Laws. For information on a minor's legal independence, see Delaware Emancipation Laws.