Delaware Child Custody Petition — Your Filing Guide

What This Document Does

This is a Petition for Custody that you file with the Delaware Family Court to ask a judge to establish or change custody of your children. It tells the court who the parents are, describes your children, explains why you're asking for custody, and proposes a schedule for when each parent will have the children.

When to Use This

• You are unmarried and need to establish custody for the first time
• You are divorcing and need the court to decide custody
• You want to modify (change) an existing custody order
• The other parent is not following the current custody order

Before You File

Gather these items:

• [ ] Children's birth certificates
• [ ] Children's Social Security numbers
• [ ] Your marriage certificate (if married to the other parent)
• [ ] Any existing court orders about custody, divorce, or child support
• [ ] Proof of your income (pay stubs for last 3 months, tax returns, or benefits letters)
• [ ] Information about the other parent's income (if known)
• [ ] Proof of Delaware residency (driver's license, utility bill)

Good news: Filing is FREE in Delaware Family Court

Step-by-Step Filing

1. Complete the Petition. Fill in every blank. Be honest and specific.

1. Make 3 copies. Keep one for yourself. File the original and two copies.

1. Go to the Family Court in your county:

• New Castle County: 500 North King Street, Wilmington
• Kent County: 400 Court Street, Dover
• Sussex County: 22 The Circle, Georgetown

1. File the Petition. There is no filing fee for custody petitions.

1. Get the Summons. The clerk will give you a Summons to have served on the other parent.

1. Serve the other parent. The other parent must receive copies of the Petition and Summons. Options:

• Sheriff's deputy
• Private process server
• Certified mail (check with the court if this is allowed)

1. Attend mediation (if required). Delaware Family Court often requires parents to try mediation before a trial.

1. Attend your court hearing. The court will schedule a hearing. You must attend.

Delaware's Best Interest Factors

Under Delaware law (13 Del.C. § 722), the court decides custody based on the "best interests of the child." The judge must consider these factors:

1. Parents' wishes — What does each parent want?

1. Child's wishes — What does the child want (if old enough)?

1. Relationships — How does the child interact with:

• Both parents
• Grandparents
• Siblings
• Step-parents or partners
• Other household members

1. Adjustment — How is the child adjusted to:

• Home
• School
• Community

1. Health — What is the mental and physical health of everyone involved?

1. Compliance — Has each parent fulfilled their responsibilities to the child?

1. Domestic violence — Is there any history of domestic violence?

1. Criminal history — Does any party or household resident have a criminal history?

Important Delaware Law

No Gender Preference: Under Delaware law, the court cannot presume that a parent is better qualified just because of their gender. Mothers and fathers are treated equally.

Equal Rights: Both parents have equal rights and responsibilities. Neither has automatic preference for custody.

Frequent Contact: Delaware law requires custody arrangements that "permit and encourage the child to have frequent and meaningful contact with both parents" unless contact would endanger the child.

Types of Custody in Delaware

• Legal Custody: The right to make major decisions (education, medical, religion)
• Sole legal custody: One parent decides
• Joint legal custody: Both parents decide together

• Physical Custody (Primary Residence): Where the child lives
• Primary residence with one parent: Child lives mainly with one parent, visits the other
• Shared custody: Child spends substantial time with both parents

Modifying Custody Orders

If you want to change an existing custody order:

• Within 2 years: The court can only modify if continuing the current order "may endanger the child's physical health or significantly impair such child's emotional development."

• After 2 years: The court considers:
• Whether harm to the child from modification is outweighed by advantages
• Whether each parent has complied with prior orders
• The best interest factors listed above

At Your Hearing

Bring:

• Your filed Petition
• Children's birth certificates
• Any existing court orders
• Proof of income for both parents
• Evidence supporting your case (school records, medical records, photos)
• Witness list (if you have witnesses)

Say:

• "Your Honor, I am [YOUR NAME]. I filed a Petition for Custody on [DATE]."
• "I am asking the court to [describe what you want]."
• "The proposed arrangement is in my child's best interest because [explain]."
• Be respectful. Do not interrupt the judge or the other parent.

Legal Aid Resources

If you need free legal help:

• Delaware Legal Help Line: 1-800-818-4658 — Free legal information and referrals
• Community Legal Aid Society (CLASI): (302) 575-0400 (Wilmington) — Free legal services for low-income Delawareans
• Delaware Volunteer Legal Services: (302) 478-8851 — Free legal help for those who qualify
• Legal Services Corporation of Delaware: (302) 575-0660
• LSC Finder: https://www.lsc.gov/about-lsc/what-legal-aid/find-legal-aid

Disclaimer

This guide and the court document template are for informational purposes only and do not constitute legal advice. Laws change. For legal advice specific to your situation, contact a licensed attorney or the legal aid organizations above.

Not a law firm. Not your attorney. No attorney-client relationship exists.