CasewellThe law in plain words
Under 13 Del. C. § 701, when parents live apart, "neither shall benefit from any presumption of being better suited for such award."
In plain words, the judge starts with two equal parents. Each parent's evidence about the child decides the rest.
Wondering who usually ends up with custody? Our page on the chances of getting full custody in Delaware explains what the figures can and cannot show.
Delaware's custody terms
Delaware splits custody into several pieces. The Family Court instruction packet uses these terms:
- Legal custody: the power to make major decisions, such as school, health care and religion.
- Joint legal custody: both parents make those decisions together. It says nothing about how much time each parent gets.
- Sole legal custody: one parent makes the major decisions alone. The other parent keeps their parental rights.
- Primary residential placement: the home where the child sleeps most nights.
- Shared placement: close to equal time. For child support, it means at least 164 overnights a year in each home.
- Contact or visitation: the time a child spends with the parent who does not have primary placement.
"Full custody" is not a Delaware legal term. People usually mean sole legal custody plus primary placement.
Under § 727, both parents can ask for school, medical and activity information, whoever has legal custody. A court can limit that only after a hearing, if it would endanger the child.
Is Delaware a 50/50 state?
No. Delaware has no presumption of equal time or joint custody.
- The starting point: section 701 says neither parent is presumed better suited to have custody.
- Frequent contact: under § 728, the schedule must encourage frequent and meaningful contact with both parents, unless a hearing shows danger.
- The guidelines: for children 5 and older, the court's contact guidelines suggest a shared schedule, possibly alternating weeks. They are a starting framework, not a rule.
A 2026 bill, House Bill 434, would presume equal parenting time when both parents live within 25 miles of the child's school or daycare. It was sent to the House Judiciary Committee on May 21, 2026. As of October 27, 2026, it had not become law.
The best-interest factors
Under § 722, the court weighs every relevant fact, including:
- what each parent wants for custody and the child's home
- what the child wants, about who has custody and where to live
- the child's relationships with parents, siblings, grandparents and anyone else in the home
- how well the child is doing at home, at school and in the community
- the mental and physical health of everyone involved
- how each parent has met their duties to the child under section 701, before and now
- any evidence of domestic violence
- the criminal record of either party or anyone living in the home, including guilty and no contest pleas
The court cannot favor a parent because of their sex. It also ignores a parent's conduct that has no effect on their bond with the child.
Your child's preference
Delaware sets no age at which a child chooses. The child's wishes are one factor, and the judge decides how much they count.
- Maturity matters: the court packet says a child's view counts when the child is old enough to give a thoughtful opinion.
- Private interview: under § 724, the judge may talk with the child in chambers. Either party can ask for a record of that talk.
- Recorded interviews: the judge may also interview a child on the record. Parties can send in questions and review the recording.
- Child's statements: something a child said outside court can sometimes be used, with notice to the other side.
A lawyer for the child may also be appointed, with the fee treated as a cost of the case.
Mothers' and fathers' rights
Delaware law calls both parents the "joint natural guardians" of their child. Each has equal powers and duties.
Neither parent starts with a better claim to custody. Under § 722, the court cannot assume a parent is better qualified because of their sex.
A father's chances depend on the same evidence as a mother's: his bond with the child, his care and the child's needs.
If you were never married
Without a court order, Delaware treats both legal parents as having "joint natural custody." Each can spend time with the child and make major decisions. Informal agreements between parents are generally not enforceable.
An unmarried father must first be a legal parent before he can file. The court packet lists these routes:
- Acknowledgment of parentage: both parents sign a sworn form, usually at the hospital.
- Court order: a judge decides parentage, often after genetic testing.
- De facto parent: someone who has acted as a parent, with the parent's support, and built a parent-like bond may qualify.
If parentage has never been decided, file an Affidavit of Parentage (Form 154) with your custody petition.
- Changing your mind: a signer can cancel an acknowledgment within 60 days, or before a first court hearing about the child, if sooner.
- After that: it counts as a court finding of parentage. A signer can challenge it within two years, only for fraud, duress or a serious factual mistake.
These rules are in chapter 8, subchapter III. An updated parentage law takes effect on December 6, 2026. It keeps the same 60-day and two-year windows.
Domestic violence
Under § 705A, a "perpetrator of domestic violence" is presumed unfit for sole or joint custody.
- Who it covers: a parent convicted of certain crimes against the child, the other parent or someone in the home. These include any felony and third-degree assault.
- Where the child lives: the child is also presumed not to live mainly with that parent.
- Overcoming it: the parent must stay violence-free and finish a family violence counseling program. They must also finish any ordered substance abuse counseling and show custody serves the child.
- Rare exceptions: a judge may also set the presumption aside in extraordinary circumstances, such as no real risk of future violence.
- Any violence counts: even without a conviction, past or present abuse is a factor the court must weigh.
- Written reasons: a judge who gives custody to a parent who committed abuse must explain why in writing.
- Safe contact: if abuse is found, the court sets visits that protect the child and the victim.
- Fleeing: leaving a child behind briefly to escape violence is not abandonment, if the child was not in immediate danger.
- Mediation: court mediation is barred after a domestic violence finding or a no-contact order, unless the victim's lawyer asks for it.
Emergency custody in Delaware
There are two main routes to a fast order. Which one fits depends on whether there is abuse.
- Emergency custody motion: under § 723, either party in a custody case can ask for a temporary order. A sworn affidavit must give the detailed facts.
- Without notice: the judge can act before the other parent is heard only if the child may suffer irreparable harm. The other parent then gets a hearing as soon as practicable.
- Protection from abuse order (PFA): under 10 Del. C. § 1043, a parent facing immediate danger can ask for an emergency order. A hearing without the other parent happens that day or the next court day.
- PFA hearing: after an emergency order, a full hearing must be held within 15 days.
- Custody in a PFA: the order can give you temporary custody. Either parent can ask for interim visitation.
PFA relief such as custody lasts up to one year. The court packet urges filing a custody petition soon after a PFA. A later custody order replaces the PFA custody terms.
Delaware custody holiday schedule and contact guidelines
When parents cannot agree, the Family Court uses its contact guidelines as a possible schedule. They assume both parents are safe and capable.
- Birth to 18 months: every other weekend, Friday 6 p.m. to Sunday 6 p.m., plus two weeknight visits of at least three hours.
- 18 months to 5 years: two overnights a week, plus every other weekend from Friday 6 p.m. to Monday morning.
- 5 and older: a shared schedule that may stretch to alternating weeks.
- Holidays: two lists alternate by odd and even years. One holds Easter, July 4, Halloween and Christmas Day. The other holds Memorial Day, Labor Day, Thanksgiving and Christmas Eve.
- Mother's Day and Father's Day: the child spends 9 a.m. to 6 p.m. with the parent being celebrated.
- Summer: for children 5 and up, parents alternate weeks from early June to late August.
- Late arrivals: a parent who is over 30 minutes late without notice loses that visit.
- Cancelling: give at least 24 hours' notice, except in an emergency.
Holidays and school breaks override the regular schedule. Parents may change any of it by agreement.
Moving with your child
Moving a child is restricted as soon as a custody case starts. Under § 721, filing triggers an automatic preliminary injunction against both parents.
- The injunction: neither parent may take the child out of Delaware's jurisdiction without written consent or the court's permission.
- When it applies: to the filing parent at filing, and to the other parent once served.
- Under an order: the guidelines require written approval or a court order before a move that may change school or travel time.
For a move of 60 days or more, out of state or one that changes the current arrangement, § 734 applies. The judge weighs:
- the child's bond with each parent, siblings and other key people
- the child's age, needs and how the move affects their growth
- whether a new schedule can keep the bond with the other parent alive
- the child's preference, given their age and maturity
- whether the moving parent has supported or undermined the other relationship
- whether the move improves life for the parent and child
- each parent's reasons for the move or for opposing it
- anything else about the child's best interests
A parent who moves without telling the other parent may be treated as interfering with contact.
Moving to a neighboring state? Its custody rules may differ. Read our guides for Maryland, New Jersey and Pennsylvania.
Changing custody
Changing custody starts with a verified petition, meaning a sworn statement of the facts. The case usually goes back to mediation. Under § 729, the test depends on the kind of order.
- Visitation: can be changed at any time if it serves the child.
- Consent or interim orders: can be changed at any time under the best-interest factors.
- Within two years of a full hearing: custody changes only if the current order may endanger the child's physical health or emotional development.
- After two years: the court weighs harm from a change against its benefits, each parent's compliance with orders, and the § 722 factors.
- New violence: a custody order can change at any time if a custodial parent commits domestic violence after it.
Sometimes a hearing shows a parent blocked court-ordered time. Then § 728 says the court must make them pay the other parent's costs and reasonable lawyer fees. It must also choose a remedy:
- make-up time with the child
- a temporary transfer of custody or the child's home for up to 30 days
- a fine, or jail for contempt of an earlier order
The rule cuts both ways. A visiting parent who skips scheduled visits without good reason can face a surcharge. It is up to 10% of their monthly support for each violation.
Parent education and mediation
Most custody cases bring two early steps.
- Parent education: parents of children up to age 17 must complete a state-approved class of at least four hours. File the original certificate with the court.
- Skipping the class: the court may weigh it against you or dismiss the case. A waiver needs a motion and a good reason.
- Domestic violence class: if a parent has a history of domestic violence, each parent attends a separate class.
- Mediation: after service, most cases go to a Family Court mediator. You do not have to agree to anything.
- Disclosure report: each parent completes Form 364 before mediation. Without mediation, file it at least seven days before the first hearing.
- No agreement: the mediator may suggest a temporary schedule. A judge decides whether to adopt it.
Mediation is skipped after a domestic violence finding or a no-contact order. You can also ask the court to bypass it if you feel unsafe.
How to file for custody in Delaware
Delaware must usually be the child's home state. That means the child lived in Delaware for six months in a row before filing. Exceptions exist, including for babies under six months.
- Fill in the forms. File a Petition for Custody (Form 345), a Custody Separate Statement (Form 346) and an Information Sheet (Form 240).
- Sign before a notary. The petition must be notarized.
- File in any county. Use the Family Court Resource Center, mail, or email to FC_CustodyVisitation@delaware.gov. The case moves to the child's county.
- Pay the fee or ask for a waiver. The court will not accept a petition without one or the other.
- Serve the other parent. A process server delivers the papers in Delaware. Out-of-state parents are served by certified mail.
- Take the parent class and go to mediation.
The other parent has 20 days after service to file an Answer. The Family Court custody page has the forms and the full instruction packet. A hearing can take six months or more to schedule.
How much does it cost to file for custody in Delaware?
Fees come from the Family Court Schedule of Assessed Costs, effective July 20, 2026.
| Filing | Fee |
|---|---|
| Petition for custody or visitation | $90, plus a $10 court security fee |
| Petition to modify custody or visitation | $90, plus a $10 court security fee |
| Divorce | $165, plus a $10 court security fee |
| Genetic test for mother, child and alleged father | $103.02 |
These are the listed costs, last checked October 27, 2026. Confirm them with the clerk before filing. If you cannot afford the fee, file an Application to Proceed In Forma Pauperis (Form 257P).
The schedule lists no fee for a protection from abuse petition. It also cites a federal law saying abuse victims should not bear the costs of getting protection.
What changed recently
- December 6, 2026 (coming): an updated Uniform Parentage Act takes effect. It makes acknowledgments gender-neutral and moves the de facto parent rules. It was signed on June 9, 2026.
- January 1, 2027 (coming): an existing military protective order will count in favor of an emergency protection order. The bill was signed on September 18, 2026.
- July 20, 2026: a new Family Court cost schedule took effect. A custody petition is listed at $90, plus the $10 security fee.
- May 21, 2026: House Bill 434 proposed an equal parenting time presumption. It stayed in committee and is not law.
- September 2023: protection from abuse law began to cover financial abuse and taking a partner's legal documents.
Apart from 2023 wording updates, the custody chapter has not changed in substance since 2022. That year, police gained power to help enforce custody orders. The relocation factors in § 734 arrived in 2021.
Last checked October 27, 2026. Laws can change, so check before you rely on this.
Building the record
Delaware judges ask how each parent has met their duties to the child, and whether anyone blocked contact. Both questions are answered with dates, not adjectives.
Note each exchange, school update and doctor visit as it happens. Casewell keeps those notes and the messages behind them together, so a lawyer can read a clear timeline.
Before you record a call or a handover, check whether you can record your co-parent in Delaware.
A clearer way to prepare
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A Delaware custody record
Delaware judges weigh each parent's care, compliance and the child's safety. Keep these items current so your facts are ready.
Court timeline
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Is Delaware a 50/50 custody state?
No. Delaware has no presumption of equal time or joint custody. Both parents start as equal guardians, and the judge decides on the child's best interests.
How do I get emergency custody in Delaware?
File a motion for a temporary custody order with a sworn affidavit of the facts. A judge acts without notice only if the child may suffer irreparable harm. If there is abuse, a protection from abuse order can also give temporary custody.
How do I get sole custody in Delaware?
File a Petition for Custody and show why sole custody serves your child under the eight best-interest factors. A conviction for certain domestic violence crimes creates a presumption against giving that parent custody.
What is the Delaware custody holiday schedule?
Under the Family Court contact guidelines, parents alternate two holiday lists by odd and even years. Mother's Day and Father's Day go to the parent being celebrated.
Who has custody of a child if there is no court order in Delaware?
Both legal parents share joint natural custody. Informal arrangements are generally not enforceable, so either parent can file for a custody order.
How much does it cost to file for custody in Delaware?
The listed cost is $90 for a custody petition, plus a $10 court security fee. Confirm it with the clerk. A fee waiver is available if you cannot afford it.
Sources
This page summarizes Delaware's custody, domestic violence, parentage and protection from abuse statutes, Family Court guidance and recent legislation, as of October 2026. It explains the law in general terms and is not legal advice.
- 13 Del. C. § 701 — rights of parents checked
- 13 Del. C. §§ 721–734 — custody proceedings checked
- 13 Del. C. ch. 7A — Child Protection From Domestic Violence Act checked
- 13 Del. C. §§ 8-301 to 8-314 — acknowledgment of parentage checked
- 10 Del. C. §§ 1041–1049 — protection from abuse checked
- Delaware Family Court — custody checked
- Delaware Family Court — Child Custody Instruction Packet checked
- Delaware Family Court — contact guidelines checked
- Delaware Family Court — Schedule of Assessed Costs (July 20, 2026) checked
- Delaware General Assembly — Senate Bill 250 (Uniform Parentage Act) checked