Reviewed August 2026
Child Custody in Delaware
Delaware decides custody in Family Court, one unified statewide court. Every case starts from the same legal default: unmarried and divorcing parents are 'joint natural custodians' of their child under Title 13 of the Delaware Code. A case begins with a Petition for Custody. The judge then applies the best-interest factors in 13 Del. C. § 722 to decide legal custody, meaning who makes decisions, and residential placement, meaning where the child physically lives. Family Court routes most custody cases into mediation soon after the petition is served. Both parents must also complete a Parenting Education Class, a requirement built into the preliminary injunction that issues automatically once a custody case is filed. The court can make an exception, such as for a documented history of domestic violence or an active no-contact order. An existing custody order can be changed later, and the process starts the same way it did the first time. The parent seeking the change files a Motion and Affidavit to Modify Custody, and the case generally goes back to mediation before it can reach a judge.
Virdix's document-preparation product currently prepares divorce paperwork for California and Florida cases. This page explains how child custody works under Delaware law for people researching before they file. It is not legal advice, and Virdix does not prepare or file Delaware paperwork. See how Virdix works for California divorces.
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Legal terms of art and the best-interest factors
Delaware separates legal custody, the authority to make decisions about a child's welfare, from residential placement, the actual living arrangement and schedule for the child. Delaware law treats parents as joint natural custodians by default, so most cases start from a presumption of shared legal custody unless a party shows why sole legal custody should go to one parent. 13 Del. C. § 722 lists the best-interest factors Family Court applies: the wishes of the child's parents; the wishes of the child, if old enough to express a preference; the child's relationship with parents, siblings, and other significant people; the child's adjustment to home, school, and community; the mental and physical health of everyone involved; each parent's past and future compliance with their rights and responsibilities; evidence of domestic violence; and, where relevant, the criminal history of any party or resident of a proposed household.
Where and how a custody case starts
Delaware has one unified, statewide Family Court rather than county-level courts, so a custody case is filed with the same court system no matter which county the family lives in. The case starts with the Petition for Custody (Family Court Form 345). The petitioner also submits a Custody, Visitation and Guardianship Disclosure Report (Form 364), covering prior custody proceedings and other required background information. Filing a custody petition automatically triggers a preliminary injunction that applies to both parents while the case is pending. Delaware Family Court's website publishes the current forms and a step-by-step description of the custody process.
Mandatory mediation and parenting education
Once a custody petition is served, Family Court normally refers the case to mediation before scheduling a hearing before a judge, unless a finding of domestic violence or an active no-contact order makes mediation inappropriate. Separately, the preliminary injunction issued when a custody case is filed orders both parents to complete a Parenting Education Class. This requirement is built into the standard custody process, not something a party has to request. Mediation and the parenting class are typically finished before the case reaches a contested hearing, which in many cases narrows what actually gets litigated in front of a judge.
Changing a custody order later
To change an existing Delaware custody order, a parent files a Motion and Affidavit to Modify Custody in the same Family Court case. As with an initial petition, a modification request generally goes back to mediation first, unless a domestic violence exception applies, and it only reaches a judge if the parents cannot agree. The court reapplies the 13 Del. C. § 722 best-interest factors to the family's current circumstances when deciding whether and how to change the existing order.
Sources: Delaware Code Title 13, Chapter 7, Subchapter II (§§ 721-734, custody and best-interest factors), Delaware Courts - Family Court home, Delaware Courts - Family Court Custody process, Delaware Courts - statewide forms
Not independently confirmed
- Whether every county courthouse location schedules mediation on the same timeline was not independently confirmed; Family Court is unified statewide but scheduling can vary by location.
- Current cost, provider, and scheduling details for the Parenting Education Class were not independently itemized beyond what the Family Court custody page states.
Child Custody in Delaware: frequently asked questions
What is the difference between legal custody and residential placement in Delaware?+
Legal custody is the authority to make major decisions about a child's upbringing. Residential placement is where the child actually lives and the schedule for time with each parent. Delaware treats parents as joint natural custodians by default, so shared legal custody is the starting point unless a party shows why sole legal custody should go to one parent.
What factors does Delaware Family Court use to decide custody?+
13 Del. C. § 722 lists the factors: each parent's wishes, the child's own wishes if old enough, the child's relationships with parents and siblings, adjustment to home, school, and community, everyone's mental and physical health, each parent's compliance with their duties, any domestic violence history, and relevant criminal history.
Is mediation required in a Delaware custody case?+
Yes, in most cases. Once a custody petition is served, Family Court normally refers the case to mediation before scheduling a hearing before a judge, unless there is a domestic violence finding or an active no-contact order that makes mediation inappropriate.
Do Delaware parents have to take a parenting class?+
Yes. Filing a custody petition triggers a preliminary injunction that orders both parents to complete a Parenting Education Class as part of the standard process, unless the court makes an exception.
Where do I file for custody in Delaware?+
File in Delaware Family Court, the state's single unified court for family matters, using the Petition for Custody (Form 345) along with the required Custody, Visitation and Guardianship Disclosure Report (Form 364).
How do I change an existing Delaware custody order?+
File a Motion and Affidavit to Modify Custody in the same Family Court case. The request generally goes back to mediation first, unless a domestic violence exception applies, and the court reapplies the 13 Del. C. § 722 best-interest factors if the case reaches a judge.
This page is general information about child custody in Delaware, not legal advice for your situation. Laws, fees, and procedures change over time; confirm current details with Delaware's own courts before relying on anything here. Virdix is not a law firm and is not licensed to practice law in Delaware. Virdix does not prepare or file Delaware divorce paperwork. It is not a substitute for an attorney licensed in Delaware.
More Delaware divorce guides
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