Delaware Child Custody — Types, Laws & Guide (2026)

Understanding Delaware child custody laws is essential for any parent going through a divorce or separation. This comprehensive guide covers the types of custody Delaware recognizes, how courts determine the best interests of the child, parenting plan requirements, relocation rules, and how to modify existing custody orders. Whether you are negotiating a custody agreement or preparing for a custody hearing, this guide explains Delaware’s custody framework in clear terms.

Verified against Delaware family law statutes as of April 2026.

Types of Custody in Delaware

Delaware recognizes several types of custody arrangements:

Joint custody presumption: NO. Delaware does not have a statutory presumption favoring joint custody. The court evaluates each case individually under the best interests of the child standard (13 Del. C. § 722). However, in practice, Delaware judges commonly award joint legal custody so both parents share decision-making responsibilities. There is no presumption for or against any particular custody arrangement — the court has broad discretion.

Delaware Best Interest of the Child Standard

The best interests of the child standard is the primary framework Delaware courts use for all custody decisions. This standard considers what arrangement will best serve the child’s physical, emotional, and developmental needs.

Delaware courts evaluate these best interest factors when making custody decisions:

• Under 13 Del. C. § 722
• the court must consider ALL relevant factors
• including: (1) The wishes of the child’s parent or parents as to the child’s custody and residential arrangements; (2) The wishes of the child as to the child’s custodian(s) and residential arrangements; (3) The interaction and interrelationship of the child with the child’s parents
• grandparents
• siblings
• persons cohabiting in the relationship of husband and wife with a parent of the child
• any other residents of the household or persons who may significantly affect the child’s best interests; (4) The child’s adjustment to the child’s home
• school
• and community; (5) The mental and physical health of all individuals involved; (6) Past and present compliance by both parents with their rights and responsibilities to their child under 13 Del. C. § 701(a); (7) Evidence of domestic violence as provided for in Chapter 7A of Title 13. The court shall NOT presume that a parent
• because of such parent’s sex
• is better qualified than the other parent to act as joint or sole legal custodian or primary residential parent. The court shall not consider conduct of a proposed custodian that does not affect the parent’s relationship with the child.

Child’s preference: In Delaware, a child’s custody preference may be considered when the child reaches No specific age. Delaware law does not set a particular age at which a child may express a custody preference. Under 13 Del. C. § 722(a)(2), the court considers “the wishes of the child” as one factor, but the weight given depends on the child’s age, maturity, ability to form an intelligent opinion, and whether the preference is a “passing whim” or based on “temporary dissatisfaction.” Older children generally receive more weight. There is no age at which the child’s preference is dispositive.. The weight given to the child’s preference increases with age and maturity. The court considers the child’s reasoning and whether the preference is influenced by a parent.

Delaware Parenting Plans

Delaware requires parents to submit a parenting plan as part of custody proceedings. A Delaware parenting plan must address: (1) A comprehensive child visitation/parenting time schedule including regular weekday and weekend schedules; (2) Holiday and vacation schedules; (3) Parental duties and responsibilities; (4) Medical coverage and health care decision-making; (5) Parental contact arrangements (phone, video, etc.); (6) Transportation and exchange logistics; (7) Any other issues relevant to the well-being of the children. The plan is typically formalized during mediation or submitted to the court as part of the custody petition.

Key elements of an effective parenting plan:

• Regular residential schedule (weekdays, weekends, overnights)
• Holiday and school vacation rotation
• Transportation arrangements and pickup/drop-off logistics
• Decision-making authority (education, healthcare, extracurriculars)
• Communication methods between parents and between parent and child
• Dispute resolution process (mediation before court)
• Right of first refusal when a parent is unavailable

Delaware Custody Relocation Rules

Under Delaware law, when there is a proposed relocation of a child for a period of 60 days or more involving either (a) a move outside the State of Delaware or (b) a move that materially affects the current custodial and residential arrangement, the relocating parent must provide 60 days’ written notice to the other parent and, absent agreement, seek court approval. Both parents must give written notice immediately upon any change of address or phone number. If the parents cannot agree, either may petition the court. The court evaluates relocation using factors including: the nature/quality/duration of the child’s relationship with both the relocating and non-relocating parent; the age, developmental stage, and needs of the child; the likely impact on the child’s physical, educational, and emotional development; the feasibility of preserving the non-relocating parent’s relationship through modified visitation; the reasons for the move; and the best interests of the child.

Notice requirement: The relocating parent must provide 60 days written notice required before a proposed relocation outside Delaware or a move that materially affects the custody arrangement. days advance written notice to the other parent.

The court evaluates whether the move serves the child’s best interests, considering the reason for the move, the impact on the child’s relationship with the non-moving parent, and whether a modified visitation schedule can preserve that relationship.

Modifying Delaware Custody Orders

Delaware uses different standards depending on the type of original order (13 Del. C. § 729): (1) VISITATION-ONLY modifications: the court may modify at any time if in the child’s best interests — no threshold showing required. (2) CONSENT-BASED custody orders (agreed to by both parents): the court may modify at any time after considering the best interest factors under § 722 — no waiting period. (3) COURT-ORDERED custody after a full hearing — TWO-YEAR RULE: If LESS than 2 years since the order was entered, the order can be changed ONLY if continuing to enforce it would endanger the child’s physical health or significantly impair the child’s emotional development. If MORE than 2 years since entry, the order can be modified after the court considers the best interest factors plus additional factors regarding harm to the child and parental compliance. Delaware does not use a simple “material change in circumstances” test — the standard depends on the order type and how recently it was entered.

Common modification triggers: parent relocation, change in child’s needs, substance abuse, domestic violence, parent’s work schedule change, child reaching an age where preferences are considered, or one parent consistently violating the existing order.

Special Circumstances in Delaware Custody

Domestic violence: Delaware has strong statutory protections under 13 Del. C. § 705A (Child Protection From Domestic Violence Act). There is a REBUTTABLE PRESUMPTION that no perpetrator of domestic violence shall be awarded sole or joint custody of any child, and that no child shall primarily reside with a perpetrator of domestic violence. Evidence of domestic violence is also an enumerated best interest factor under § 722(a)(7). The presumption can be overcome ONLY if: (1) there have been no further acts of domestic violence AND (2) the perpetrator has successfully completed a batterer’s intervention program, completed alcohol/drug counseling if appropriate, and demonstrated that custody is in the child’s best interests; OR the court finds extraordinary circumstances showing no significant risk of future violence. Where domestic violence has resulted in death or near-death injuries to a child, the court shall NOT award custody or unsupervised visitation without expert testimony from a certified mental health professional. Mediation is also waived when a Protection From Abuse (PFA) order exists.

Grandparent visitation: YES. Delaware allows grandparent (and third-party) visitation under Title 13, Chapter 24, Subchapter II. Grandparents, aunts, uncles, and adult siblings may file a Petition for Third-Party/Grandparent Visitation (Form 172) if they can establish a substantial and positive prior relationship with the child. However, the court may NOT grant visitation over a parent’s objection UNLESS: (1) the objecting parent has abused or neglected the child, OR (2) the grandparent proves by CLEAR AND CONVINCING EVIDENCE that the parent’s objection is unreasonable AND proves by a PREPONDERANCE OF THE EVIDENCE that visitation will not substantially interfere with the parent-child relationship. Visitation must also be in the child’s best interests. After filing, the case is typically referred to mediation.

Unmarried parents: Under Delaware law, parents are joint natural custodians of their children regardless of marital status (13 Del. C. § 701). However, for unmarried fathers, paternity must first be established before the father has legal standing to seek custody or visitation. Paternity can be established by: (1) Voluntary Acknowledgement of Paternity (VAP) — both parents sign a legal document at the hospital or later through the Office of Vital Statistics (both parents must be 18+); (2) Court order through Delaware Family Court (required if either parent is a minor); (3) Genetic/DNA testing. Once paternity is established, both parents have equal rights to custody unless a court orders otherwise. Either parent may then file a custody petition in Family Court. The mother is not automatically presumed to have sole custody once paternity is established — the court applies the same best interest factors as in any other custody case.

Guardian ad litem: Delaware Family Court may appoint a guardian ad litem (GAL) to represent the best interests of the child in custody proceedings. A GAL is defined as “an individual appointed by the Court to represent the best interests of a child whether or not that reflects the wishes of the child.” The GAL has authority to review all documents and interview all pertinent persons having significant information relating to the child. In standard custody/visitation petitions, a GAL is NOT automatically required — the court appoints one at its discretion when circumstances warrant (e.g., allegations of abuse, high-conflict cases, or complex situations). The court may also order a custody evaluation by a licensed mental health professional, which is distinct from the GAL role. The Office of the Child Advocate oversees GAL appointments in Delaware.

Additional Delaware rules: (1) NO GENDER PREFERENCE: Delaware statute explicitly prohibits presuming either parent is better qualified based on sex (13 Del. C. § 722(b)). (2) CONDUCT EXCLUSION: The court shall not consider conduct of a proposed custodian that does not affect the parent’s relationship with the child (§ 722(b)). (3) SEX OFFENDER PROTECTIONS: Chapter 7A also contains provisions regarding child protection from sex offenders (Subchapter II, §§ 710A et seq.), including restrictions on custody and visitation for registered sex offenders. (4) FORM 364 REQUIREMENT: Unique to Delaware — mandatory Custody, Visitation and Guardianship Disclosure Report must be completed by both parties prior to mediation or 7 days before first court appearance. (5) OFFICE OF THE CHILD ADVOCATE: Delaware has a dedicated Office of the Child Advocate within the court system that oversees GAL appointments and child representation. (6) PFA MEDIATION BYPASS: Cases with active Protection From Abuse orders skip mediation and go directly to judicial hearing.

Official Sources & Resources

• Cornell LII — Child Custody: law.cornell.edu
• NCSL Custody Laws: ncsl.org
• Delaware Custody Statute: Title 13, Chapter 7 of the Delaware Code (Domestic Relations — Parents and Children), specifically: 13 Del. C. § 701 (parental rights and responsibilities), § 707 (jurisdiction), § 722 (best interests of child factors), § 727 (custody order provisions), § 728 (joint custody), § 729 (modification of prior orders). Domestic violence provisions: 13 Del. C. Chapter 7A (§§ 705A–710A, Child Protection From Domestic Violence and Sex Offenders Act). Grandparent/third-party visitation: Title 13, Chapter 24, Subchapter II.

Last verified April 2026. Contact us if you notice outdated information.

Related Guides

• Delaware Divorce Process Guide
• Delaware Child Support Guide
• Delaware Alimony Guide
• All Custody Guides