Family Matters

8 Criteria Judges Consider Before Granting Custody in Delaware

Family Court judges are charged with making custody and visitation decisions regarding Delaware’s children. In each case brought before the judge, he or she sets custodial and residential arrangements in accordance with the best interests of the child.  But what does that consideration entail?

The presiding judge is required to consider all relevant factors, including eight specifically enumerated factors set forth in Section 722 of Title 13 of the Delaware Code. The enumerated factors are:

1. The wishes of the child’s parent or parents as to his or her custody and residential arrangements
2. The wishes of the child as to his or her custodian or custodians and residential arrangements
3. The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests
4. The child’s adjustment to his or her home, school and community
5. The mental and physical health of all individuals involved
6.  Past and present compliance by both parents with their rights and responsibilities to their child
7. Evidence of domestic violence as provided for in Chapter 7A of this title
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense

While these factors must all be considered in each case, the judge is not required to give each factor equal weight.  Rather, as the Delaware Supreme Court held in Fisher v. Fisher, 691 A.2d 619, the best interests factors are to be balanced in accordance with the factual circumstances of the evidence presented to the Family Court.