Custody represents an additional layer to the divorce process for parents of minor children. In Delaware, divorcing parties are free to agree on a parenting plan; a judge will rule on all custody matters based on the best interests of the child.
Once the initial order is in place, both parents must honor the custody provisions but may pursue a modification under certain circumstances.
Types of Custody
Delaware recognizes two types of custody, legal and physical. Legal custody refers to the authority to make major decisions regarding the welfare of the child, including matters related to education, religion and medical treatment. Physical custody refers to where the child stays overnight. Both types of custody can be shared between parents or held solely by one parent. Shared physical custody does not necessarily mean a 50/50 split, and the parent with more custody time is referred to as the primary residential parent.
Parents who can reach agreement on custody are free to draft their own parenting plan in Delaware. The court will review the plan to ensure that it is in the best interest of the child before it will become part of any court order. The best interest factors a judge will consider, in either approving a parenting plan or making its own determination, include the relationship between the child and each parent, the child's adjustment to home, school and community, and the mental and physical health of all individuals involved.
When it comes to parent-child contact, the parent with less physical custody generally has the right to visitation. An exception to this rule is if the court finds that the parent would endanger the physical or emotional health of the child. Once a visitation order has been put in place, the parent with primary residential custody may not interfere with the other parent's access to the child. If access is wrongfully denied, the aggrieved parent may petition the court for sanctions, including more contact time, fines against the other parent, or even imprisonment.
Existing custody and visitation orders may be modified under certain circumstances in Delaware. By law, orders made by agreement of the parties and without a hearing may be modified at any time if a change is found to be in the child's best interest. If the order was made after a full hearing, it may only be modified after two years have passed, unless it can be shown that the existing order would seriously endanger the child's physical or emotional health. If it has been more than two years, the court may modify the order if it is in the best interests of the child after taking into consideration both parents' compliance with the existing order and weighing the advantages and disadvantages of modification.
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