Updated January 12, 2024
A Delaware custody agreement is a legal document that outlines the terms of an arrangement between two separated parents, specifically their rights and responsibilities related to their child. This document addresses such matters as the child’s residence, time with each parent, and each parent’s role in making important decisions that affect the child’s life. The court approves custody agreements that support a child’s health, happiness, and safety.
Child Custody Factors
In determining custody, the court considers the following:
- The wishes of the parents
- The wishes of the child
- The interaction and interrelationship of the child with parents, grandparents, and other household residents
- The child’s ability to adapt to a community
- Each party’s mental and physical health
- Evidence of domestic violence
- Each party’s criminal history
- The parents’ ability to communicate with each other
- The geographic proximity of the parents
- Parents’ work schedules
- Parents’ drug and alcohol history
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How to File for Custody in Delaware
In situations of domestic violence, one parent can file a Petition for Order of Protection from Abuse (as well as an Information Sheet). It’s important to understand that this is temporary and expires after one year, sometimes sooner, so for longer-term custody arrangements, a Petition for Custody should also be filed.
1. Agree on a Parenting Plan
The first step of the custody process is to try to reach an agreement with the other parent regarding the terms of custody, such as scheduling, parental responsibilities, and more. If the parents are able to agree on the terms—and they are determined to serve the child’s best interest—the court is likely to issue a custody order approving them.
2. Calculate Child Support
Child support is calculated using the Delaware Child Support Formula, which considers both parents’ monthly incomes and the needs of the child to determine how much each parent must pay in child support.[1]
3. File Forms
The party filing for custody must file the following forms:
- Petition for Custody (Form 345): This form outlines the petitioner’s case and must be notarized by a notary public or authorized court staff.
- Custody Separate Statement (Form 346): This form explains a child’s past and present living arrangements.
- Information Sheet Form (Form 240): This form includes information about the parties, including their contact information.
Both original documents and copies of each document can be filed in any Family Court in Delaware. Copies can also be sent to the court via email.[2] Filing fees apply.[3] Copies should also be retained for personal records.
4. Serve Forms on Other Party
If the parties are not filing jointly, then the petitioner should file copies of these forms on the other party. If the respondent lives in Delaware, then a professional process server can deliver the paperwork, and if the respondent does not, then the court will deliver the forms via certified mail. The receiving party has 20 days to respond to the petition by filing an Answer to the Petition.
5. Attend Mediation
Next, the court will schedule a mediation session. Each party should bring a copy of the Custody, Visitation, and Guardianship Disclosure Report (Form 364) to the session.
One of two things will happen at mediation: the parties reach an agreement and sign a consent order, thus wrapping up their custody case, or they do not reach an agreement and their case is scheduled to be heard by a judge. The only situation in which mediation is not necessary is a situation involving domestic violence, in which either party has been ordered not to contact the other party.
6. Attend a Parent Education Class
All parents involved in a custody case in the State of Delaware must complete a Parent Education Class.[4] Failure of both parents to attend or to produce a Certificate of Completion to the Family Court can significantly impact a custody hearing, even causing it to be dismissed.
7. Attend Hearing
A conference will be held no later than 60 days after mediation. At this conference, the judge briefs both parties on the course of action that will follow.
It’s necessary for both parties to attend court hearings. Failure to show could result in the case being dismissed. If there’s a good reason one or both parents can’t attend, a Motion of a Continuance must be filed with the court.
Custody Laws
- Child’s Preference: Yes § 722(a)(2)
- Uniform Child Custody Jurisdiction and Enforcement Act: Title 13, Chapter 19
- Visitation: § 728
Related Forms
