Custody – It’s What’s Best for the Kids, Pt. 1

By Shana A. Pinter, Esq.

Custody disputes between parents are fraught with emotion and tension.
Each family member has to adjust to a very different life and the loss of significant control. In most cases, the children now have two separate homes and those homes are run separately, and sometimes very differently, from each other.

This article is the first in a two-part series on custody in Delaware. This issue explains what custody is and how it is decided. The next issue will cover the basic process, when to file for custody and when to settle instead of going to court. So, the first question:  “What is custody?”  In Delaware, the term “custody” involves two major parts:  legal custody and residential arrangement. Legal custody is the legal decision-making authority over the child.  In most cases, legal custody is awarded to both parents equally – referred to as “joint custody.” Both parents have the authority and must agree about the major decisions in their child’s life, such as education, religion, medical treatment, and so on. This is the default in Delaware – meaning that the Court will start from the point that joint custody is in the best interest of the child(ren) (discussed in detail below) and needs to be convinced why it is not. In comparison, sole custody awards decision-making authority to one parent and that parent alone can make all the decisions pertaining to the child including if and when the other parent has visitation. Sole custody is very difficult to get and usually isn’t awarded unless there are issues such as substance abuse problems, instability in housing, or a criminal record, to name a few. The second part of custody in Delaware is residential arrangement – which parent the child will be with and when. The default here in Delaware for children age 5 and older is “shared residence” which means that each parent has the child(ren) for 7 overnights out of a 14-day period. This is usually accomplished by the children switching households on a weekly basis.  However, any arrangement can be used as long as each parent gets those 7 overnights. In comparison, one parent’s home can be named as primary residence. As with sole custody, the Court has to be strongly convinced that it’s in the best interest of the child(ren) that they live primarily with one parent and only have visitation with the other. Some examples are when a parent lives out of state or if a parent doesn’t have appropriate space for the child(ren) in their home, among others. Children under the age of 5 usually have one parent’s home designated as primary residence and spend up to two overnights during the week and every other weekend with the other parent. Now that you have a general understanding of legal custody in Delaware, the next question to tackle is: “How is custody decided?” The Court decides custody and residency based upon what it determines is in the “best interest” of the child(ren). In other words, it’s not what you want and it’s not what your kids want – it’s what is best for your kids . . . and that is decided using the following factors: •  The wishes of the parents and the wishes of the child(ren); •  The extent of the child(ren)’s relationship with each parent’s extended family and any individuals that live with the parents; •  The child’s adjustment to school, community and home • The mental and physical health of everyone involved • How each parent has lived up to the responsibilities of being a parent in the past – such as financial support, emotional support, being involved with their child(ren) •  Any history of domestic violence •  The criminal history of all involved in the case. In the next issue, we’ll discuss the process of filing for custody, when to file and when to settle.   Shana A. Pinter, Esq., is the founding attorney of Pinter Law, LLC, a law firm dedicated primarily to family law. She has been practicing since 2009 and founded Pinter Law, LLC, to increase access to legal assistance to those facing challenges within their families.