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Delaware Child Custody
Child Custody in Delaware

According to Delaware Child Custody Laws, "The Court shall determine the legal custody and residential arrangements for a child in accordance with all relevant factors pertaining to the best interests of the child."

Title 13 of the Delaware Code sets forth the rules and procedures for domestic issues, including custody and visitation. These protocols aim to resolve domestic disputes amicably and fairly, and they encourage parents to make decisions in the child's best interests.

Both parents have a right to information about the child's education, school activities, medical care, religious upbringing and legal affairs even when one parent retains sole legal custody. The parent with sole legal custody must furnish this information and inform the non-custodial parent of "significant events" in which the child is participating so that the non-custodial parent may attend.

The couple can opt for sole custody to one parent. A preliminary injunction is served so that a custody hearing can begin after the petition is filed. Pending the hearing, neither parent can permanently move the child from the state.

The entire family must also attend a parenting education class. A certificate is issued upon completion, and must be submitted to the court. Even if one parent is awarded sole custody, he or she is not permitted to withhold information from the other parent concerning the child's progress in school, medical treatments or recreational activities. The court order, when finalized, will contain a visitation schedule for both parents.

Joint Custody Preference

Delaware law expresses a preference for parents to share as equally as possible in the custody of a child in a divorce case.

Both parents are considered natural joint custodians for their children, which means that both parents have the right to make major decisions concerning how the child will be raised and cared for. This includes deciding where the child will live, the school he or she will attend, and the religion the child will be raised in. Both parents are also permitted to attend all public functions for the child, such as sports games or graduations.

Delaware pays particularly attention to the mental and physical health of the parents and children. The custodial parent must be in stable physical and mental health. A chronically ill parent may not be suitable to care for a child, especially if the child is young, and a mentally ill parent is likely not to be awarded custody either, as his or her condition could make for an unsafe home environment. The child's mental and physical stability is considered as well. For example, a child with a serious illness needs to be under the care of the parent who is capable of paying for constant medical treatments.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

Visitation

The Delaware courts have full discretion when determining visitation between children and parents. The courts can establish visitation between one or more parent, even if both parents agreed upon a no-visitation policy.

The court can award visitation rights to the non-custodial parent upon request when the other receives primary or sole physical custody, unless the court determines that visitation would not be in the child's best interest.

Parents develop their own visitation schedule, or submit a petition to the court for the judge to determine the schedule. When the judge enters a visitation order, the order becomes effective immediately, and the custodial parent must comply with the schedule.

The custodial parent cannot interfere with the non-custodial parent's visitation rights. The custodial parent cannot withhold visitation if the non-custodial parent fails to pay his child support or alimony obligations. The court can award additional visitation to make up denied visitation and/or grant the non-custodial parent temporary custody for up to 30 days. The custodial parent is also subject to fines, sanctions and other penalties, including jail time, if found guilty of interference.

Desires of Child and Parents

In a custody hearing, the Delaware courts consider the desires of both parents and the child. The preference of the child is considered because he or she is likely to select the parent who was the primary caregiver during the marriage. A child also is prone to select the parent who has remained close to where the couple resided during marriage, so that the child will not have to switch schools, or move to an area that requires making new friends.

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