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Equal Access To Justice Child Custody in Delaware Information for Victims of Domestic Violence Parents of a child are considered under Delaware law to be the joint natural custodians of that child. If those parents do not live together with the child, the Delaware Family Court has the authority to grant custody and placement of a child to one parent over the other. If you or your child is a victim of abuse by the other parent of your child, you may be able to use the Family Court to grant you an order of custody or placement of your child for protection. Emergency Custody Through an Order of Protection From Abuse One way to ask the Family Court for custody of your child is to file a Petition for Order of Protection from Abuse (PFA). The Family Court may place you in temporary custody of your child with a PFA order. (Please see the Orders of Protection From Abuse page on this website for more information concerning the PFA process. The Delaware Family Court has a pamphlet describing the Protection From Abuse Act as well.) Please note: you should not attempt to secure custody of your child through the PFA process if you are not a victim of domestic violence. This emergency custodial relief only is available to victims. It should not be abused by parties not suffering from the consequences of domestic violence. The Petition for Custody You may also file a Petition for Custody with the Family Court. A petition for custody requires a filing fee, but if you cannot afford the filing fee you can ask the Court to let you file your petition without paying it. (See the Family Court - An Introduction page for further information on waiver of filing fees.) When you file your petition you must be able to tell the Court the street address where the other parent lives. The Court needs this information in order to serve a copy of your petition and send other information as the case progresses. The Court will not accept a post office box for an address, you must provide a street address. If you believe that you or your child is in danger without a custody order you may ask the Court for an emergency order. To make this request you must file an Affidavit for Priority Scheduling or Ex Parte Order. Mediation If you are not given an emergency order, your custody petition will be scheduled for mediation at the Family Court. Mediation is not scheduled where one parent has a PFA or a "no contact" order against the other parent. At mediation a court staff person will speak with both parents to see if the parents can agree to a particular custody order. If you or the other parent are unwilling to agree to an order, the case will be scheduled for a hearing before a judicial officer. Preparing for the Custody Hearing and the "Best Interest" Standard You will receive a notice in the mail from the Family Court telling you the day and time of your hearing. This hearing will be your only chance to explain to the judicial officer why you believe you need a custody order. If you have a witness to support your case, you should make sure they attend the hearing. If they are unwilling or unable to attend the hearing voluntarily, you may ask the Court to order them to appear by issuing a "subpoena". Make sure to request the subpoena well before the custody hearing in order to give the Court time to serve your witness. It is very important to speak with your witnesses prior to the hearing concerning their testimony. While you should not coach them and tell them what to say, it is important to let them know the areas that you will cover in your questioning so that they will understand and be prepared to answer your questions. At the hearing the judicial officer will decide what kind of placement or custody order to enter. The standard used by the Court to determine custody and placement is the "best interests" of the child. The law requires the judicial officer to consider several things when deciding what are the best interests of the child. The judicial officer must consider: The physical and mental health of each of the parents and the child; The adjustment of the child to the school, home and community where the parent lives; Whether the parent has been responsible in the past; The wishes of each of the parents and the child; Whether there are problems in a parent's household; Whether one parent has committed abuse against the other parent or the children. Some important things to remember about the best interests of the child: If the other parent has been convicted of a crime of domestic violence, the Court presumes that parent should not be granted custody; If you were forced to leave your home because of domestic violence the Court will not conclude that you abandoned your child as long as the child was not in danger; In most cases it is more important to focus upon "placement" of the child rather than the issue "sole" versus "joint" custody. If you are granted "placement" the child lives with you and that is very important. Most judges are extremely hesitant to grant "sole" custody of a child to one parent. The Court presumes that it is in the best interests of the child to have optimal contact with both parents. The Custody Hearing At the hearing the judicial officer will hear testimony from both parties and their witnesses. The party that filed the Petition for Custody will present their case first. If both parties filed Petitions for Custody, then the Court will hear first from the party that filed the first petition. You will have the opportunity to cross examine the witnesses called by the other parent. You should also keep in mind that that other parent will cross examine your witnesses as well. After each party has presented their case in chief the Court must make a decision concerning custody and placement. The judicial officer may enter a decision immediately or the Court may reserve judgment. In the ladder case, you will receive a decision from the Court in the mail. Legal Representation It is very important to present your case in the best light at the hearing. If the Court enters a decision after a full hearing on the petition, the Court will not entertain any motions to modify the custody order for two years unless there are extraordinary circumstances. Consequently, it is best to secure the services of an attorney to represent you at the hearing. If you are a victim of domestic violence and cannot afford to pay for an attorney in a custody case, call Legal HELPLINK at 478-8680 in New Castle County or 1-800-494-1913 in Kent or Sussex Counties. Return to Top of Page