Delaware Child Custody Agreement

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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).

3. 3

   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.

4. 4

   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.

5. 5

   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.

6. 6

   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.

7. 7

   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.

Delaware Requirements for Child Custody Agreement

• Modification Grading Under 13 Del. C. 729(b) and (c)

  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.

• Best Interest Factors Under 13 Del. C. 722(a)(1) to (8)

  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.

• Contact Schedule Required by 13 Del. C. 727(c)

  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.

• Residence, Visitation and Findings Under 13 Del. C. 728(a) and 727(d)

  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.

• Consent Order Review Under Del. Fam. Ct. Civ. R. 16.1(b)(5) and (6)

  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.

• Compulsory Mediation Under Del. Fam. Ct. Civ. R. 16.1(b)(1) and (2)(D)

  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.

• Automatic Removal Injunction Under 13 Del. C. 721(d)

  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.

• Domestic Violence Presumptions Under 13 Del. C. 705A, 706A and 708A

  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.

• Relocation Scope and Factors Under 13 Del. C. 734

  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.

• Enforcement Sanctions Under 13 Del. C. 728(b)

  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.