Delaware Child Custody Agreement
Delaware treats a consent order as modifiable at any time while shielding an order entered after a full hearing for two years, so agreeing here buys speed rather than security.
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Introduction
Delaware grades custody orders by how they were produced, and the grading runs against parents who agree. Under 13 Del. C. 729(b), a consent order, an interim order, or a written agreement between parents about legal custody or a child's residence may be modified at any time on the ordinary best interest standard. An order entered after a full hearing on the merits is treated differently: for two years it cannot be modified unless the court finds that continuing to enforce it may endanger the child's physical health or significantly impair the child's emotional development, and after that the court weighs the likely harm of a change against its advantages together with each parent's compliance record. Two Delaware families can hold identical schedules and have different legal security depending on whether they litigated or agreed. That is not a reason to fight, but it is a reason to know what an agreed Delaware order does and does not settle. Delaware also has no parenting plan of any kind, so what the law regulates is the contents of the order, and the one item every custody order must include is a contact schedule.
Key Things to Know
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An agreed Delaware order is easier to change than a litigated one. 13 Del. C. 729(b) lets the court modify a consent order, an interim order, or a written agreement between the parents about legal custody or the child's residence at any time, applying the ordinary best interest factors. Section 729(c) shields an order entered after a full hearing on the merits for two years behind an endangerment standard, then applies a harm-weighing test after that. Nothing in Delaware law gives an agreement extra weight, and 13 Del. C. 701(a) forbids any presumption that either parent is better suited to have custody.
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The agreement binds when the court approves it, and Delaware states the rejection power expressly. Del. Fam. Ct. Civ. R. 16.1(b)(6) says the court may decline to approve a proposed consent or interim order for any relevant reason, and that it shall decline in defined situations. Before approving, a judicial officer reviews the agreement together with the criminal histories of the parties and of the occupants of every household in which the child will reside or visit, under Rule 16.1(b)(5).
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A household member's record, not just a parent's, can force rejection. Rule 16.1(b)(6) requires the court to decline approval where a person residing in a household the child will live in or visit is a registered sex offender or a perpetrator of domestic violence as defined in Chapter 7A, or has been convicted or adjudicated delinquent of domestic violence against the child or against a person in such a household. The only way past that is a pre-existing written court order in which a judge specifically considered the circumstances and still found the arrangement appropriate. If the court declines, either party may request a hearing.
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Mediation is compulsory, and already agreeing does not excuse you from it. Del. Fam. Ct. Civ. R. 16.1(b)(1) requires a mediation conference in all custody, visitation, and guardianship proceedings seeking an initial, modification, or rescission decree, and no trial can be scheduled before a judge until mediation is complete. Rule 16.1(b)(2)(D) requires an executed stipulation to reach the court before the scheduled conference or the parties must appear, and the conference cannot be continued just because a stipulation is on its way. Court-ordered mediation is barred under 13 Del. C. 711A where domestic violence has been found or a stay-away order exists, unless a represented victim asks for it.
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Delaware does not use physical custody as a legal category. 13 Del. C. 722(a) frames the question as legal custody and residential arrangements, and 728(a) requires the order to fix, whether custody is joint or sole, with which parent the child will primarily reside and a schedule of visitation with the other parent. 13 Del. C. 727(c) then requires every custody order to include a contact schedule. A generic document that allocates physical custody is using a term Delaware's custody statute does not employ as a status and is likely to omit the one item the order must contain.
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The best interest list is short, open, and reaches beyond the parents. 13 Del. C. 722(a) sets eight factors: the parents' wishes; the child's wishes; the child's interaction with parents, grandparents, siblings, cohabitants and other household residents; adjustment to home, school and community; the mental and physical health of all individuals involved; each parent's past and present compliance with the rights and responsibilities in section 701; evidence of domestic violence under Chapter 7A; and the criminal history of any party or any other resident of the household. The list opens with all relevant factors including, so it is a floor rather than a closed set, and no age gives a child's preference controlling weight.
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Domestic violence is handled in its own chapter, not as one factor among eight. 13 Del. C. 705A creates a rebuttable presumption that a perpetrator of domestic violence will not be awarded sole or joint custody, and a parallel presumption that the child will not primarily reside with that person. The presumption is conviction-gated through the definition in 703A(b), and it is overcome on a compliance showing under 705A(c) that includes completed batterer-specific evaluation and counseling, or on a judicial finding of extraordinary circumstances. A parent with a documented history but no qualifying conviction falls instead under 706A(a), which makes any past or present act of domestic violence a factor the court must consider whether or not it happened in front of the child.
Key decisions before you file
Before you file a Child Custody Agreement in Delaware, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Delaware Requirements for Child Custody Agreement
A consent order, an interim order, or a written agreement between the parents about legal custody or the child's residence may be modified at any time on ordinary best interest grounds. An order entered after a full hearing on the merits cannot be modified for two years absent a finding that continued enforcement may endanger the child's physical health or significantly impair the child's emotional development, and after two years is modified only after weighing harm against advantage and reviewing each parent's compliance.
Eight factors, introduced by a direction to consider all relevant factors including them, so the list is a floor rather than a closed set. Two reach beyond the parents: factor (7) points into the Chapter 7A domestic violence provisions, and factor (8) makes the criminal history of any other resident of either household a best interest consideration. No age gives the child's preference controlling weight; section 724 only permits an interview in chambers.
Every Delaware custody order must include a contact schedule by the child with both parents, and that schedule controls absent parental modification by written agreement. Include it in the document rather than leaving it to the court. The written-modification right runs to the contact schedule only, not to legal custody or primary residence.
Whether custody is joint or sole, the order must state with which parent the child will primarily reside and set a schedule of visitation with the other parent. If access is denied or restricted, the order must state the specific facts and conclusions supporting that. Where a parent is a deploying member of the armed forces or National Guard, section 727(d) makes the order an interim order, modifiable on return or termination of service.
A judicial officer reviews a proposed consent agreement along with the criminal histories of the parties and of the occupants of every household in which the child will reside or visit. The court may decline approval for any relevant reason, and must decline where a household occupant is a registered sex offender or a Chapter 7A perpetrator of domestic violence, subject to a narrow exception for a pre-existing order in which a judge considered those circumstances. Either party may request a hearing if approval is declined.
A mediation conference is required in all custody, visitation, and guardianship proceedings seeking an initial, modification, or rescission decree, and no trial may be scheduled before a judge until it is complete. An executed stipulation must be received by the court before the scheduled conference or the parties must appear, and the conference cannot be continued on the ground that a stipulation is coming.
Filing a custody or visitation petition triggers a preliminary injunction against both parties by operation of law, barring removal of a child of the parties then residing in Delaware from the court's jurisdiction without the prior written consent of the parties or the permission of the court. It binds the petitioner on filing and the respondent on service, and no one has to ask for it.
Section 705A creates a rebuttable presumption against awarding sole or joint custody to a perpetrator of domestic violence and a parallel presumption against the child primarily residing with that person, rebuttable on the compliance showing in 705A(c) or on a judicial finding of extraordinary circumstances. The definition is conviction based under 703A(b). Section 706A(a) separately requires the court to consider any past or present act of domestic violence whether or not committed in the child's presence, with written findings under 706A(b) if custody or primary residence is nonetheless awarded, and section 708A requires a protective visitation schedule on a preponderance finding.
Section 734 applies to a proposed relocation of a child for a period of 60 days or more involving a move outside Delaware or a move that materially affects the current custodial and residential arrangement. The 60 days is the length of the move, not a notice period, and there is no distance threshold or allocated burden. The section lists eight factors the court must consider, including feasibility of preserving the other relationship through suitable visitation and whether a party has a pattern of promoting or thwarting the child's relationship with the other.
On a finding after a hearing that a party violated, interfered with, impaired, or impeded custodial authority, residence, or visitation, the court shall order costs and reasonable counsel fees and shall impose one or more listed sanctions. These include makeup contact, a temporary transfer of custody or primary residence for up to 30 days made without regard to the section 729 factors, a surcharge on the monthly child support obligation, a fine, and imprisonment for contempt.
Frequently Asked Questions
It gets you an order quickly, but it does not make the arrangement more secure, and in one respect it makes it less secure. Under 13 Del. C. 729(b) a consent order, an interim order, or a written agreement between the parents about legal custody or the child's residence may be modified at any time on ordinary best interest grounds. An order entered after a full hearing on the merits is protected under section 729(c): for two years it can be changed only if continued enforcement may endanger the child's physical health or significantly impair the child's emotional development, and after two years the court weighs the harm of a change against its advantages and looks at each parent's compliance. Delaware gives agreement no presumption, and section 701(a) rules out any presumption that one parent is better suited.
Yes. A private agreement is something the Family Court recognizes and can modify, but it is not an order, and the enforcement machinery in 13 Del. C. 728(b) applies to orders. The usual route is a custody or visitation petition followed by the compulsory mediation conference under Del. Fam. Ct. Civ. R. 16.1(b), with any resulting consent agreement sent to a judicial officer for review. In a divorce, Rule 104.2(b) allows the decree to incorporate an agreement by reference under a separate stipulation approved by the court.
Yes, and the rule says so in two ways. Del. Fam. Ct. Civ. R. 16.1(b)(6) provides that the court may decline to approve a proposed consent or interim order for any relevant reason, and that it shall decline where a person residing in a household the child will live in or visit is a registered sex offender or a perpetrator of domestic violence as defined in Chapter 7A of Title 13, or has been convicted or adjudicated delinquent of domestic violence against the child or a person in such a household. A pre-existing written court order in which a judge considered those circumstances and still found the arrangement appropriate is the only stated exception. If approval is declined, either party may request a hearing.
In practice yes. Del. Fam. Ct. Civ. R. 16.1(b)(1) requires a mediation conference in all custody, visitation, and guardianship proceedings seeking an initial, modification, or rescission decree, and bars scheduling a trial before a judge until mediation is complete. Rule 16.1(b)(2)(D) requires an executed stipulation to be received by the court before the scheduled conference, failing which the parties must appear, and it does not allow the conference to be continued because a stipulation is coming. Court-ordered mediation is prohibited under 13 Del. C. 711A where a party has been found to have committed domestic violence against the other or a stay-away or no-contact order exists, unless a represented victim requests it.
Not as a status. 13 Del. C. 722(a) speaks of legal custody and residential arrangements, and 728(a) requires the order to say with which parent the child will primarily reside and to set a schedule of visitation with the other parent. The phrase physical custody appears in the custody subchapter only in 727(e), which allows a police officer to enter private property to take physical custody of a child in order to enforce an order. The structure to write to is legal custody, primary residence, and contact schedule.
13 Del. C. 727(c) requires every custody order to include a contact schedule by the child with both parents. Section 728(a) requires the order to fix primary residence and a visitation schedule whether custody is joint or sole, and to state the specific facts and conclusions supporting any denial or restriction of a parent's access. Where a parent is a deploying member of the armed forces or National Guard, 727(d) makes the order an interim one. Child support is calculated separately under its own rules and is not settled by a custody order.
The contact schedule, yes. 13 Del. C. 727(c) provides that the ordered contact schedule controls absent parental modification by written agreement, so parents who both sign a written change can vary the contact schedule without a new order. That does not extend to legal custody or to the child's primary residence. Section 729(b) treats a written agreement about those as something the court may modify at any time, so changes there belong in front of the court.
13 Del. C. 722(a) lists eight: the wishes of the parents; the wishes of the child; the child's interaction and interrelationship with parents, grandparents, siblings, cohabitants and other household residents; the child's adjustment to home, school and community; the mental and physical health of all individuals involved; past and present compliance by both parents with their rights and responsibilities under section 701; evidence of domestic violence as provided in Chapter 7A; and the criminal history of any party or any other resident of the household. The section opens by directing the court to consider all relevant factors including those, so the list is not closed.
No, and this is easy to get wrong. The 60 days in 13 Del. C. 734 measures the length of the proposed relocation, not advance warning: the section applies where there is a proposed relocation of a child for a period of 60 days or more involving either a move outside Delaware or a move that materially affects the current custodial and residential arrangement. There is no distance threshold and no statutory notice period. What section 734 does is list eight factors the court must consider once relocation is in issue during custody or visitation litigation, and it does not assign the burden to either party. Separately, 13 Del. C. 721(d) puts an automatic injunction on both parents when a petition is filed, barring removal of the child from the court's jurisdiction without written consent or the court's permission.
Delaware has a dedicated chapter, the Child Protection From Domestic Violence Act at 13 Del. C. ch. 7A. Section 705A creates a rebuttable presumption that no perpetrator of domestic violence will be awarded sole or joint custody, and a separate presumption that the child will not primarily reside with that person. The definition in 703A(b) is conviction based, so a parent with a history but no qualifying conviction is instead covered by 706A(a), which makes any past or present act of domestic violence a factor the court must consider whether or not it occurred in the child's presence, with written findings required under 706A(b) if custody or primary residence is awarded anyway. Section 708A requires a protective visitation schedule on a preponderance finding of an act of domestic violence. If there has been abuse, coercion, or a protective order, take this to a lawyer rather than settle it on a form.