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How to Modify Child Custody in Delaware

Reviewed by DocDraft Legal Team · Delaware · Last updated November 13, 2026

Delaware ties its two year clock to the way your last custody order was made, not only to the date printed on it. Modifying child custody in Delaware means asking the Family Court that issued your existing custody or visitation order to change it because something significant has changed since. Under 13 Del. C. § 729, the clock reaches only an order the court entered after a full hearing on the merits about legal custody or the child's primary residence. File within 2 years of the court's most recent order on those matters and the court shall not modify unless it finds, after a hearing, that continuing the prior order may endanger the child's physical health or significantly impair the child's emotional development. After 2 years the court weighs likely harm against advantages, each parent's compliance with prior orders, and the § 722 best interest factors. Nothing stops you filing early; the hurdle is the finding. A consent order, an interim order or a written agreement can be modified at any time under § 722, and visitation can be changed at any time on best interests. You file a verified petition, Form 348, pay $90 plus a $10 court security assessment, attend Court staff mediation and complete a parent education class. Moving runs on its own track. 13 Del. C. § 734 sets no notice period and no mileage; it makes the court weigh eight factors when a relocation of 60 days or more would cross the state line or materially affect the current arrangement. Attorney review of your petition is available through DocDraft.

Find out where you stand in Delaware

DocDraft provides document preparation, not legal advice.

Is there a waiting period to modify custody in Delaware?

Not on filing. 13 Del. C. § 729(c)(1) applies only to orders entered after a full hearing on legal custody or primary residence. If you file within 2 years of the court's most recent such order, the court shall not modify unless continuing it may endanger the child's physical health or significantly impair emotional development.

How do I ask the Delaware Family Court to change a custody order?

File Form 348, the Petition to Modify Custody Order, because 13 Del. C. § 730 requires a verified petition setting out the facts supporting the change. The Family Court fee schedule effective July 20, 2026 lists a $90 civil filing cost plus a $10 court security assessment. A Court staff mediation conference normally comes next.

How much notice must a Delaware parent give before relocating with a child?

No statute sets a number of days. 13 Del. C. § 734 only lists factors the court must weigh. Family Court contact guidance says a parent whose move may change the child's school, school travel time or activities should obtain the other parent's written approval or a court order first, so read your own order.

Which court changes a custody order in Delaware?

The Family Court of the State of Delaware, which sits in New Castle, Kent and Sussex Counties. Under 13 Del. C. § 721(a) a custody proceeding is filed in the county where the child is permanently a resident or is found, and Form 348 asks for the date of the prior custody order.

Delaware custody modification at a glance

Modifying child custody in Delaware means asking the Family Court to change an existing custody or visitation order because circumstances have shifted since it was entered. The detail that matters most here is that the history of the order counts as much as its age. Orders made by consent, interim orders and written agreements stay open to change at any time under the § 722 best interest factors. Only an order entered after a full hearing on the merits about legal custody or primary residence carries the § 729(c) two year endangerment test. Relocation runs separately: § 734 has no day count and no mileage, and switches on for a move of 60 days or more that crosses the state line or materially affects the arrangement. Filing a custody or visitation petition also triggers an automatic order against removing the child from Delaware.

A Dover residence ruling and a mother in Wilmington

Thirteen months after a Kent County judge heard both sides and kept the children's primary residence with their father in Dover, their mother has settled in Wilmington and wants them living with her. Because that order followed a full hearing on primary residence and fewer than 2 years have passed, 13 Del. C. § 729(c)(1) lets the Family Court change it only on a finding that continuing the order may endanger the children's physical health or significantly impair their emotional development. Wanting more time does not meet that test. She instead files Form 348 seeking longer weekends and a midweek overnight, which § 729(a) allows at any time on best interests. She pays $90 plus the $10 security assessment, books the parent education class and brings Form 364 to mediation. Once more than 2 years have run from that order, § 729(c)(2) governs a residence request.

Relevant Laws

13 Del. C. § 729 (modification of prior orders)

Lets a visitation order, and any consent order, interim order or written agreement on legal custody or residence, be modified at any time. For an order entered after a full hearing on legal custody or primary residence, applies an endangerment finding to applications filed within 2 years of the most recent such order and three considerations after that.

13 Del. C. § 734 (relocation)

Requires the Family Court to weigh eight listed factors when, in custody or visitation litigation, a child's proposed relocation for 60 days or more would move the child outside Delaware or materially affect the current custodial and residential arrangement or order. Sets no notice period and no mileage figure.

13 Del. C. §§ 721, 722 and 730 (filing, best interests, verified petition)

Section 721 places custody proceedings in the Family Court and issues an automatic injunction against removing the child from Delaware once a petition is filed. Section 722 lists the eight best interest factors. Section 730 requires a verified petition setting forth facts supporting the requested modification.

Family Court Civil Rules 16(b), 16.1 and 16.4

Rule 16(b) requires the Custody, Visitation, and Guardianship Disclosure Report. Rule 16.1(b) requires a Court staff mediation conference in custody and visitation proceedings seeking modification, unless service was by publication. Rule 16.4 requires both parties to complete a certified parent education program.

Family Court Schedule of Assessed Costs

The Family Court's published cost schedule, effective July 20, 2026, listing the $90 civil filing cost and the $10 civil court security assessment, which the schedule applies to petitions for modification of custody and of visitation.

Regional Variances

Delaware custody modification levers at a glance

Two year rule and what it reaches

13 Del. C. § 729(c) reaches only an order entered after a full hearing on the merits, and only its legal custody or primary residence terms. Visitation orders, consent orders, interim orders and written agreements fall outside it and may be modified at any time.

What starts the clock and what lifts it

The 2 years run from the court's most recent order concerning legal custody or primary residence. Filing early is allowed. Inside the window the court shall not modify unless it finds, after a hearing, that continuing the prior order may endanger physical health or significantly impair emotional development.

Standard after two years

Under § 729(c)(2) the court considers likely harm against the advantages of a change, each parent's compliance with prior orders and § 727 duties including any § 728(b) sanctions, and the § 722 factors. The statute does not use the phrase material change in circumstances.

Relocation notice period

None set by statute or by the Family Court Civil Rules. Family Court Contact Guidelines item 13 calls for written approval from the other parent or a court order before a move that may affect school, school travel or activities, where your order adopts those guidelines.

Relocation trigger

No mileage. Section 734 applies to a proposed relocation for a period of 60 days or more that either moves the child outside Delaware or materially affects the current custodial and residential arrangement or order. The 60 days measures how long the move lasts, not how much notice to give.

Moves while a case is open

Section 721(d) issues a preliminary injunction when a custody or visitation petition is filed, effective against the petitioner on filing and the respondent on service, barring removal of the child from the court's jurisdiction without written consent of the parties or court permission.

Court, form and fee

The Family Court of the State of Delaware, in the county where the child is permanently a resident or is found. Form 348, Petition to Modify Custody Order, sworn as § 730 requires. Fee schedule effective July 20, 2026: $90 civil filing cost plus a $10 court security assessment.

Screens and the child's wishes

No adequate cause paper screen. Mediation with a Court staff mediator, the Form 364 disclosure report and a certified parent education class are required by Family Court Civil Rules 16.1(b), 16(b) and 16.4. No age threshold applies to the child's preference; § 734(4) uses age and maturity.

Suggested Compliance Checklist

Identify how the current order was entered

Before anything else days after starting

Read the order for whether it followed a full hearing on the merits or was entered by consent, as an interim order or from a written agreement. That single fact decides whether 13 Del. C. § 729(b) lets you seek a change at any time or § 729(c) applies.

Date the most recent custody or residence ruling

Before drafting days after starting

For a full hearing order, find the court's most recent order on legal custody or primary residence. Within 2 years of it you must show that continuing the order may endanger the child's physical health or significantly impair emotional development; after 2 years the § 729(c)(2) considerations apply.

Gather proof matched to the right test

Before drafting days after starting

Collect school, medical and communication records tied to dates since the order. Under § 729(c)(2) include evidence of each parent's compliance with prior orders and any § 728(b) sanctions. For a planned move, assemble facts on the eight § 734 factors, including the reasons for relocating.

Draft and swear Form 348

When your evidence is assembled days after starting

Complete the Petition to Modify Custody Order with the prior order's date and the facts supporting the change, then swear it before a Clerk of Court or notary because § 730 requires a verified petition. Attorney review of your petition is available through DocDraft.

File in the Family Court and pay the costs

As soon as the petition is sworn days after starting

File in the Family Court county where the child is permanently a resident or is found. The schedule effective July 20, 2026 lists $90 plus a $10 court security assessment. If you cannot pay, file the Affidavit in Support of Application to Proceed in Forma Pauperis.

Complete Form 364 and the parent education class

Before mediation days after starting

Bring the Custody, Visitation, and Guardianship Disclosure Report to mediation, or exchange and file it at least 7 calendar days before the first appearance if no mediation occurs. Submit your parent education certificate of completion before the final hearing under Family Court Civil Rule 16.4.

Hold off on any move until it is cleared

Before relocating days after starting

Once a petition is filed, § 721(d) bars removing the child from Delaware without written consent or court permission. Check whether your order adopts the Family Court Contact Guidelines, whose item 13 asks for written approval or a court order before a qualifying move. Keep following the current order meanwhile.

Frequently Asked Questions

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