A parent’s ability to modify a custody order in Delaware depends upon the nature of the modification request, whether the prior custody order was entered by a Judge after a hearing on the merits, and the length of time that has passed between the entry of the prior order and the modification request.
Delaware distinguishes between “custody” and “visitation” under its family law statutes. Legal custody refers to the ability to make important decisions on the child’s behalf, while residency refers to where the child primarily lives. If the child lives primarily with one parent, that parent has primary residential custody. If the parenting time is equally or nearly equally shared, it is referred to as shared residency. The contact a non-custodial parent has with the child—including holidays, exchange times, and vacations—is considered visitation.
Requests to modify visitation in Delaware are always evaluated under the best interests of the child standard, as set forth in 13 Del. C. § 722. A custody order by agreement of the parents may also be modified using the same best interests standard. However, it’s important to note that even when this standard applies, parental agreements carry legal weight. Some Family Court Judges will not consider events that occurred prior to the original agreement, and any request for a modification may raise the question of why the existing parenting agreement no longer works.
If a Judge entered a custody order after a full hearing, a parent may not seek to modify the custody provisions of that order for two years, unless they can prove that continuing the current arrangement would jeopardize the child’s physical health or significantly impair the child’s emotional development. This is a high legal standard that is difficult to meet. After the two-year mark, the threshold for modification is lower and again centers around the child’s best interests.
Author Patrick J. Boyer concentrates his practice on family law. He advocates in various areas including, but not limited to, divorce, property division, alimony, child custody and visitation, child support, and domestic violence. In addition, Patrick assists his clients with issues involving guardianship and third-party visitation. He is licensed in Delaware and Pennsylvania and works out of the firm’s Centreville, Delaware office.
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