By: Attorney Tiffany Poole

In many divorce cases involving children, one or both parents often turn to the Family Court system for assistance with parenting disputes in the areas of custody, visitation and child support. Although court personnel can be very helpful, the process can take time and misunderstandings about the factors considered by the court can lead to unnecessary costs and conflict for the parents and the children. The advice of an experienced Family Law attorney can be very helpful.

In Delaware, parents are initially considered joint legal custodians of their children. When parents separate, however, either or both parents may file a Petition for Custody where they are asking the court to issue a custody order relating to their children. The court can award both legal and residential custody. The court can consider a number of factors but the number one concern for the court is “best interest of the child.”

“Legal custody” is generally defined as the ability to make all the major decisions with regard to the child. If the court grants sole legal custody to a parent, that parent can make all decisions regarding the child without consulting with the other parent. If the court grants joint legal custody, the parents share in the major decision making with regard to the child. Again, the court will consider a number of factors, but always in light of what is in the best interest of the children. By operation of law, for instance, there is a rebuttable presumption that a parent found guilty of any felony level offense involving domestic violence against a member of the child’s household, or certain other offenses or criminal contempt of a Protection from Abuse Order shall not be awarded joint legal custody.

“Residential custody” determines with which parent the child will reside. Parties can be awarded joint legal custody, but usually the child will reside primarily with one parent. A custody order will normally award primary residency to one parent (the custodial parent) with the non-custodial parent retaining the right to visitation. In some less usual case, the court will award the parents with shared residency. This entails the child spending approximately half of their time with each parent. Again the court will look to protect the best interest of the child by considering such factors as the stability of a primary home and school.

Procedurally, after a parent files a Petition for Custody in the Family Court, the other parent must be personally served. Thereafter, he/she has twenty days to respond. Once a response has been filed or the twenty days has expired, the case is normally referred to mediation. At mediation, the mediator will try and resolve the outstanding issues by instructing each parent on the different forms of custody and reviewing the content of the “Standard Visitation Guidelines” used by the Court. If the parents are able to reach an agreement at mediation, a consent order will be completed by the mediator and signed by the parents. This will later be signed by the Judge and made a final order of the Court. If the parents are unable to come to a final agreement, an interim contact schedule will be recommended by the mediator to the Judge, who will usually approve the recommendation, making it a temporary custody order until the final custody Court hearing.

After an order for custody has been entered, a parent can only change it by filing a Motion and Affidavit to Modify Custody. Delaware law differs as to orders entered pursuant to a full hearing on the merits and those entered pursuant to the parties’ consent or an interim order. Those orders entered pursuant to the parties’ consent may be modified at any time by showing a change in the child’s best interest. Those orders entered after a full hearing on the merits cannot be modified until after two years unless the parent filling for modification can show that continued enforcement of the existing order may endanger the child’s physical or mental health.

As to visitation orders, the “Standard Visitation Guidelines” are a suggested visitation schedule that parents may use when they cannot agree. The guidelines outline visitation during the week and on weekends, holidays, and summer vacation. The Court’s typical standard visitation order grants the non-custodial parent visits with the child every Wednesday evening for several hours and every other weekend from Friday through Sunday. In addition, the non-custodial parent generally gets several holidays and five weeks during the summer taken in increments of one to two weeks.

Another area of dispute that often arises regarding children is “child support.” Child support is addressed separately from custody and will not be considered un-less a parent files a Petition for Child Support with the Family Court. This is so because a parent’s right to visit with his/her child is separate from their right to receive or duty to pay child support. Every child under the age of eighteen years, whether born of a marriage or out of wedlock, has the right to receive child support from his or her parents. This duty terminates when the child turns eighteen years of age unless the child is still in high school, then it terminates upon the receipt of a high school diploma or age nineteen, whichever occurs first.

The Delaware Child Support Formula (commonly referred to as the “Melson Formula”) is used to establish a parent’s child support obligation. The formula will fluctuate from case to case depending on several things including the custody/visitation arraignment, parents’ incomes, parents’ payroll deductions, and daycare costs.

A Petition for Child Support is referred to mediation. Parents are instructed to bring at least three of their most recent pay-stubs as well as their most recent tax return. The mediator will run a “Melson formula” and calculate a monthly support obligation. If the parents agree, a consent order will be signed by both parents and later made a final order of the court. If they cannot agree, an interim order will be issued until the final child support hearing.

Once a support amount has been determined, state law requires the attachment of the obligor’s income, with few exceptions. The support will be paid directly to the Division of Child Support Enforcement which will collect the support and disburse it to the obligee. The Division must keep a record of the amount of support paid, when it was paid, and maintain a running total of arrears owed should the obligor fall behind in payments.

While we have summarized some of the issues and considerations affecting custody and child support, the process itself can be quite tedious and missteps can lead to unneeded conflict and costs. There are many factors that can change the course of a case and as such, meeting with an experienced Family Law attorney to obtain advice and representation can help all in-volved avoid or survive potentially contentious par-ental disputes.

For more information or to schedule a consultation, contact Attorney Poole at Rahaim & Saints by calling (302) 892-9200. www.rahaimandsaints.com

At the Wilmington and Newark law offices of Rahaim & Saints, our Delaware divorce attorneys have over 25 years experience in the negotiation and litigation of family disputes at all levels of Family Court. In addition, we are committed to a personal, client-focused practice with frequent case updates, promptly returned phone calls and clear communication at all times.

The expense and frustration of a family dispute is sometimes overwhelming. At Rahaim & Saints, our family lawyers offer a compassionate practice and affordable rates – just ask the countless satisfied clients who have referred their friends and families to our firm. If you are facing serious questions related to a divorce, alimony, custody, child support, paternity testing or another area of family law, contact the Wilmington or Newark offices of Rahaim & Saints today for a consultation and review of your rights under DE Domestic law.

With offices located in Wilmington and Newark Delaware, our attorneys at Rahaim & Saints offer legal advice and trial representation on a diversified range of legal topics, including divorce, personal injury, bankruptcy and drunk driver (DUI) defense. We have helped our clients throughout the state of Delaware.