Delaware Child Custody: Best Interest Factors

Delaware determines child custody based on the best interest of the child standard. Under 13 Del. C. Section 722, the court evaluates a specific set of factors before deciding who gets custody, what type of arrangement to order, and how visitation will work. No single factor controls the outcome — the court weighs all of them together based on the evidence.

Understanding these factors is essential for any parent involved in a custody dispute. This article walks through each one, explains the types of custody Delaware recognizes, and covers the procedural requirements that apply.

Types of Custody in Delaware

Legal Custody

Legal custody refers to the right to make major decisions about a child’s life — education, healthcare, religious upbringing, and extracurricular activities. It can be sole (one parent decides) or joint (both parents share decision-making).

Delaware courts prefer joint legal custody in most cases. Sole legal custody is typically reserved for situations involving an unfit parent, domestic violence, or a demonstrated inability to cooperate on decisions.

Physical Custody

Physical custody refers to where the child lives and day-to-day care. Delaware recognizes:

• Sole physical custody — the child lives primarily with one parent; the other has visitation
• Shared physical custody — the child spends significant time with both parents
• Divided custody — each parent has primary custody of at least one child (uncommon; courts generally disfavor separating siblings)

The Best Interest Factors (13 Del. C. Section 722)

1. The Wishes of the Parents

The court considers what each parent wants regarding custody. A parent who presents a thoughtful, child-focused parenting plan — rather than one aimed at punishing the other parent — makes a stronger impression.

2. The Wishes of the Child

If the child is of sufficient age and maturity, the court considers the child’s preference. Delaware does not set a specific age threshold. Children around 12 and older are more likely to have their preferences given weight, but the court is never bound by the child’s wishes. The judge may speak with the child privately to gauge maturity and determine whether the preference is genuine.

3. Interaction and Relationships

The court examines the quality of the child’s relationship with each parent, with siblings, and with other significant people — grandparents, step-parents, and household members. Courts pay particular attention to the primary caretaker, the parent who has historically handled daily care like meals, transportation, homework, and bedtime routines. While Delaware does not formally apply a primary caretaker presumption, consistent involvement in daily life matters.

4. The Child’s Adjustment to Home, School, and Community

Stability and continuity are important. The court evaluates how well the child is adjusted to their current home, school, and community. A child who is thriving academically, has friendships, and participates in activities benefits from continuity. Courts are reluctant to disrupt a situation that is working.

5. Mental and Physical Health

The court considers the mental and physical health of both parents and the child. A health condition is not automatically disqualifying — the court examines whether it affects parenting ability and whether the parent is managing it responsibly. Untreated substance abuse or mental health issues weigh against a parent, but a parent in treatment and managing their condition effectively is in a stronger position.

6. Compliance with Prior Court Orders

The court looks at whether each parent has complied with prior court orders — custody schedules, child support obligations, and protective orders. A track record of ignoring or violating orders raises serious concerns about willingness to cooperate with future orders.

7. Past and Present Compliance with Parental Rights and Responsibilities

This factor examines each parent’s history of involvement — attending school events, participating in medical decisions, providing financial support, and maintaining a consistent presence. A parent who has been absent or uninvolved faces an uphill battle. Courts view a sudden interest in custody from a previously disengaged parent with skepticism.

8. Evidence of Domestic Violence

Domestic violence is one of the most heavily weighted factors. Under 13 Del. C. Section 705A, if the court finds that a parent has committed domestic violence, there is a rebuttable presumption that it is not in the child’s best interest for that parent to have sole or joint custody.

The abusive parent can overcome this presumption only by presenting clear and convincing evidence that custody serves the child’s best interest. The court considers the nature, frequency, and recency of the violence, whether it was directed at the child or the other parent, whether the parent has completed a certified intervention program, and whether an ongoing threat exists.

9. Criminal History

The court examines each parent’s criminal history, particularly offenses involving violence, substance abuse, sexual offenses, or crimes against children. A record does not automatically bar custody, but serious or recent offenses weigh heavily. Courts consider the nature of the offense, how long ago it occurred, patterns of behavior, and evidence of rehabilitation.

10. Evidence of Drug or Alcohol Abuse

Substance abuse that affects parenting ability or exposes the child to risk is a significant negative factor. Courts may order drug testing, require treatment, or impose supervised visitation. A parent who has completed treatment and can demonstrate sustained recovery is in a better position than one currently struggling. Documentation of treatment and clean test results helps.

The Mandatory Parenting Education Course

Both parents in custody cases must complete a parenting education course covering the impact of separation on children, communication strategies, and co-parenting techniques. The court will not issue a final custody order until both parents have filed their certificates of completion.

Mediation Requirement

Before a contested custody case proceeds to a hearing, Delaware Family Court typically requires mediation. A trained mediator works with both parents to reach agreement. Mediation is confidential — statements made cannot be used as evidence if the case goes to court.

Mediation is not appropriate in cases involving domestic violence, and either party can request an exemption. If mediation produces an agreement, the court reviews it and incorporates it into an order. If it fails, the case proceeds to a hearing.

For a broader overview, see our article on custody mediation.

The Role of CASA Volunteers

In some cases, the court may appoint a Court Appointed Special Advocate (CASA) volunteer to represent the child’s interests. CASA volunteers are trained community members who investigate the child’s circumstances, interview parents and children, visit homes, and make recommendations. Unlike a guardian ad litem (typically an attorney), a CASA volunteer is a layperson focused solely on the child’s well-being. The court gives the CASA report serious consideration but is not bound by it.

CASA involvement is most common when there are concerns about abuse, neglect, or other circumstances that put the child at risk.

How Judges Weigh the Factors

Delaware law does not assign equal weight to each factor. The court evaluates them based on the evidence and determines which are most significant in the particular case:

• Domestic violence, criminal history, and substance abuse carry enormous weight and can shift the outcome.
• Stability and continuity are highly valued. Courts prefer to maintain arrangements that are working for the child.
• Evidence quality matters. Unsupported allegations carry little weight. Documentary evidence, testimony, and expert opinions are far more persuasive.
• Co-parenting ability is important. A parent who facilitates the child’s relationship with the other parent gains credibility.

What to Do Next

1. Understand the factors and how they apply to your case. Evaluate honestly where you are strong and where you may be vulnerable.
2. Document your involvement. Keep records of school activities, medical appointments, extracurricular events, and daily caregiving.
3. Complete the parenting education course early. Enroll as soon as possible to avoid delays.
4. Prepare for mediation. Come with a realistic, child-focused proposal.
5. Address issues proactively. If substance abuse, mental health, or criminal history is a concern, seek treatment and document your progress before the court tells you to.
6. Consult a Delaware family law attorney. An experienced attorney can help you build the strongest case based on the best interest factors. Schedule a free consultation to discuss your situation.

For a general overview of how custody is determined, see our guide on how child custody is determined.

Frequently Asked Questions

At what age can a child decide which parent to live with in Delaware?

Delaware does not set a specific age. The court considers the child’s wishes as one factor, with the weight depending on maturity and the reasons behind the preference. Children around 12 and older are more likely to have their preferences considered, but the court is never bound by the child’s choice.

Does Delaware favor mothers in custody cases?

No. Delaware law prohibits gender-based preferences. The court evaluates custody based solely on the best interest of the child, considering the statutory factors without regard to whether the parent is the mother or father.

Can grandparents get custody or visitation in Delaware?

Under 13 Del. C. Section 2412, grandparents can petition for visitation if they show it is in the child’s best interest. In rare circumstances, grandparents may petition for custody if both parents are unfit or the child has been living with them. The legal standard is high because of the constitutional presumption that fit parents act in their children’s best interest.

What happens if a parent violates a custody order in Delaware?

A parent who violates a custody order can be held in contempt of court. Penalties may include fines, makeup visitation time, modification of the custody order, and in severe cases, jail time. Repeated violations may result in a change of custody.

How long does a custody case take in Delaware?

An uncontested case where both parents agree can be resolved in a few months. A contested case requiring mediation, investigation, and a hearing can take 6 to 12 months or longer.